Rachel Barkow testifies about over-criminalization before House Judiciary Task Force

Rachel Barkow, Segal Family Professor of Regulatory Law and Policy and the faculty director of the Center on the Administration of Criminal Law, testified before the House Committee on the Judiciary Task Force on Over-criminalization on October 30. Barkow, who is a member of the United States Sentencing Commission, appeared before the committee in her capacity as a legal academic.

In her testimony Barkow, whose scholarship has focused on sentencing as well as larger structural questions of how criminal justice is administered in the US, gave an overview of the problem of over-criminalization as it relates to regulatory crime. After defining the issue, Barkow focused on one particular aspect of over-criminalization: cases in which behavior that is either innocent or that is more properly addressed with civil sanctions is treated as criminal.

Barkow spoke about the importance of mens rea—the concept of a guilty mind—and the fact that regulatory crimes may lack sufficient mens rea requirements to ensure that defendants are sufficiently blameworthy. Barkow questioned whether criminalization is the best strategy for addressing violations of regulatory offenses, and asked whether civil penalties could achieve the same levels of compliance.

Finally, Barkow pointed out that Congress typically is not aware of the regulations that an agency will pass when it authorizes criminal punishment for their violation.

“That delegates to agencies the authority to fill in the details about what is criminalized,” Barkow wrote in her prepared statement. “This framework raises the question whether Congress should take a greater role in making criminalization determinations because of institutional advantages associated with the legislative process.”

Posted on October 31, 2013

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