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12 Steps for Overcoming Overcriminalization

| May 23, 2012

In 2010, the Texas Public Policy Foundation published “Analyze Before You Criminalize.” Policymakers appreciated the checklist, but they also asked an important follow-up question: “This checklist helps us prevent new overcriminalization, but how do we reverse the overcriminalization that has already occurred?” In response, the Foundation has now released a guide with some answers: 12 Steps for Overcoming Overcriminalization. The recommendations are as follows:

1. Identify weak mens rea protections;

2. Adopt a default mens rea statute;

3. Enact the Rule of Lenity;

4. Don’t criminalize offenses based on voluntary economic transactions;

5. Eliminate unnecessary occupational licensing requirements;

6. Eliminate delegation of power to agencies through rulemaking;

7. Require that criminal laws unrelated to controlled substances include potential or actual harm to an individual victim as an element of the offense;

8. Identify and consolidate duplicative laws which sanction essentially the same behavior;

9. Reclassify misdemeanors to remove jail time when unnecessary or convert to a civil violation;

10. Apply consistent criteria in distinguishing felonies from misdemeanors;

11. Create a commission to examine and identify all criminal laws that are redundant, unnecessary, or overbroad;

12. Apply the Tenth Amendment to criminal law.

The recommendations are followed by brief explanations and several notorious examples of overcriminalization. The complete document can be read here.


RIGHT ON CRIME is a national campaign to promote successful, conservative solutions on American criminal justice policy—reforming the system to ensure public safety, shrink government, and save taxpayers money. By sharing research and policy ideas and mobilizing strong conservative voices, we work to raise awareness of the growing support for effective reforms within the conservative movement. We are transforming the debate on criminal justice in America.