[ChrisBray] Donald Trump just made it harder to go to federal prison.
On Friday, President Trump issued a new executive order with a remarkably broad scope and deep implications, under the title “Fighting Overcriminalization in Federal Regulations.” It starts with plain, clear, direct language:
The Code of Federal Regulations contains over 48,000 sections, stretching over 175,000 pages — far more than any citizen can possibly read, let alone fully understand. Worse, many carry potential criminal penalties for violations. The situation has become so dire that no one — likely including those charged with enforcing our criminal laws at the Department of Justice — knows how many separate criminal offenses are contained in the Code of Federal Regulations, with at least one source estimating hundreds of thousands of such crimes. Many of these regulatory crimes are “strict liability” offenses, meaning that citizens need not have a guilty mental state to be convicted of a crime.
This status quo is absurd and unjust. It allows the executive branch to write the law, in addition to executing it. That situation can lend itself to abuse and weaponization by providing Government officials tools to target unwitting individuals. It privileges large corporations, which can afford to hire expensive legal teams to navigate complex regulatory schemes and fence out new market entrants, over average Americans.
Moving to address the overcriminalization of federal regulations, the order flatly declares, “It is the policy of the United States that…criminal enforcement of criminal regulatory offenses is disfavored,” while adding, “Agencies promulgating regulations potentially subject to criminal enforcement should explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to those offenses.”
Mens rea is a guilty mind. Imposing a mens rea standard on federal prosecutions for regulatory offenses means that the government will be expected to stop prosecuting people who didn’t know they were doing something illegal, or people whose guilty mind — their knowledge that they were doing something illegal, and meant to — can’t be proved. It makes federal prosecution harder, less likely, and probably less common.
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