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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.

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VIBRANT P. REDDY is a Senior Policy Analyst for both Right on Crime and the Texas Public Policy Foundation’s Center for Effective Justice. He has authored several reports on criminal justice policy and is a frequent speaker and media commentator on the topic. Reddy has worked as a research assistant at The Cato Institute, as a law clerk to the Honorable Gina M. Benavides of the Thirteenth Court of Appeals of Texas, and as an attorney in private practice, focusing on trial and appellate litigation. Reddy graduated from the University of Texas at Austin with a B.A. in Plan II Honors, Economics, and History, and he earned his law degree at the Southern Methodist University Dedman School of Law in Dallas. He is a member of the State Bar of Texas and of the State Bar’s Appellate Section and Criminal Justice Section.

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