White collar criminal defense: Overcriminalization concerns growing

From 1997 to 2001, a man served as the chief financial officer of a popular anti-virus software company. According to the Washington Legal Foundation, federal prosecutors alleged that during his tenure, the company violated a number of accounting principles. As a result, the man was indicted and convicted of 15 charges related to securities fraud and making false statements to auditors.

He appealed the charges, and the U.S. Court of Appeals for the 9th Circuit reversed the decision. In his opinion, the judge wrote that not only could no jury have found the man guilty based on the evidence, but that the charges were a result of overcriminalization as prosecutors tried to stretch the laws beyond their bounds. Overusing or misusing legislation is a growing problem in Minnesota and throughout the country.

How it happens

In the 1980s, there were roughly 3,000 criminal offenses listed in the U.S. Code. Today, there are more than 4,450, according to The Heritage Foundation. An abundance of laws has created a broad range of so-called criminal behavior that can seemingly turn regular business activity into white collar crime, which can carry lengthy prison sentences and unnecessary fines as well as tarnish someone’s reputation.

There are several ways that overcriminalization can manifest during the law-making process, including the following:

  • State crimes turn into federal matters without care for proper jurisdiction.
  • Mandatory minimum sentences are unnecessarily applied to crimes.
  • Activity may be deemed unlawful without any meaningful definition.
  • Legislators adopt statutes that overlap or are duplicative.

Additionally, legislators may enact statues that are overly vague, which enable prosecutors to get creative when trying a case.

Proving intent

A joint study between The Heritage Foundation and the National Association of Criminal Defense Lawyers found that roughly 60 percent of new offenses related to nonviolent crimes lack the necessary criminal intent requirements. Therefore, someone who engages in an activity without knowing it is illegal is not granted protection under the law. When it comes to white collar offenses, the intent to break the law, or mens rea, is a key element that juries take into consideration. Criminal defense attorneys often point out that clients had an absence of intent, which becomes a moot argument when the laws do not protect clients’ constitutional rights.

In May 2013, the government authorized a task force committee to tackle the overcriminalization problem that not only does a disservice to the accused, but also creates a massive backlog in the judicial system. As a result, The Heritage Foundation reports that enacting new criminal legislation has notably slowed. However, the law continues to be misused and overused. As long as there are unjust laws on the books, people who are accused of a crime may have an uphill battle.

Max Keller has won countless jury trial cases involving misdemeanors and felonies, sex crimes, and DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. Max is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

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