8 ms·
Order on Protecting Americans from Overcriminalization Through Regulatory Reform
- coderintherye 6y agoMore transparency and readability for regulations sounds great. However, this part stuck out to me: >Criminal prosecution based on regulatory offenses is most appropriate for those persons who know what is prohibited or required by the regulation and choose not to comply, thereby causing or risking substantial public harm. Criminal prosecutions based on regulatory offenses should focus on matters where a putative defendant had actual or constructive knowledge that conduct was prohibited. This seems a step backwards. It would seem fairly easy to argue for almost any crime that one simply just didn't know it was a crime.
- gthtjtkt 6y agoThe justice department tried to count all the federal criminal laws once. The best they could come up with was a rough estimate, and that didn't even include state or local laws. There are literally so many criminal laws now that no one is able to count them all, let alone understand them. Is it fair to penalize someone if they couldn't possibly know their behavior was criminal?
- dx87 6y agoA better solution is probably simplifying and reducing the number of laws, not making the government prove that you knew what you did was against the law.
- AnthonyMouse 6y ago> It would seem fairly easy to argue for almost any crime that one simply just didn't know it was a crime. That only works until the government knocks on your door and points to the regulation you're violating. Then even if they don't prosecute you for doing it yesterday, you're all out of excuse if you do it tomorrow. Which gets you to stop.
- taurath 6y ago“Sorry officer I didn’t know I couldn’t do that” has ever only worked for the social group with the most power. The rest get the book thrown at them. You have to enforce similar rules the same way for justice.
- oh_sigh 6y agoIt's easy to argue that you didn't know, but not easy to prove it. For example, if there is any licensing or professional regulation, and all licensed professionals are expected to know X, then "I didn't know" as a licensed professional isn't going to cut it.
- bawolff 6y agoWhat if the government published a list of all the laws and expected every citizen to be familar with it? Oh Wait.
- tony101 6y agoIt's literally impossible. Even the US Government does not know how many criminal laws are out there. https://www.wsj.com/articles/SB10001424052702304319804576389601079728920 https://www.wsj.com/articles/SB10001424052702304319804576389... https://thehill.com/opinion/criminal-justice/473659-america-has-too-many-criminal-laws https://thehill.com/opinion/criminal-justice/473659-america-... https://twitter.com/CrimeADay https://twitter.com/CrimeADay
- bawolff 6y agoWhy wouldn't the same thing apply to whatever licensing regulations you're expected to be aware of, in the grandparent's idea?
- nabla9 6y ago> Criminal prosecutions based on regulatory offenses should focus on matters where a putative defendant had actual or constructive knowledge that conduct was prohibited. Less you know and understand, less you have liability.
- dkjaudyeqooe 6y ago<schultz> I know nuth-ink! </schultz>
- alphabettsy 6y agoThis seems intended to shield corporate executives from criminal liability. Am I wrong?
- jacobmarble 6y agoOr is the intent to shield himself after he leaves office?
- mlthoughts2018 6y agoLikely this, for his impending tax fraud and foreign financial crimes.
- wernercd 6y agonothing of which has been proven so far... and if it was the case, wouldn't the "crimes" from before the order be subject to the penalties applicable then? He's surrounded by throngs of lawyers... why do people think he'll be found guilty of anything other than process crimes? IE his charity which was fined 2m for... process crimes. And much like crimes done by Obama, Hillary and others... why wouldn't these "crimes" end in fines and nothing more? What else are you expecting?
- AnthonyMouse 6y agoMost regulatory offenses are punished with fines, which are generally paid by the company rather than the executives. But also, large corporations tend to have lawyers and consequently either not break the rules or have the ability to argue their way out of it. So the main benefit would seem to be to small companies that make an honest mistake.
- alphabettsy 6y agoPossibly, but I read this recently and it was one of the first things that came to mind. https://www.mlive.com/news/flint/2021/01/oil-chem-owner-pleads-guilty-in-dumping-of-47-million-gallons-of-landfill-liquid-into-flint-sewers.html https://www.mlive.com/news/flint/2021/01/oil-chem-owner-plea... I don’t believe a fine is sufficient for this type of corporate malfeasance, small business or not.
- DougN7 6y agoIs this to help Jan 6 coup folks get out of jail??
- mlthoughts2018 6y agoNo, it is to prevent Trump’s upcoming tax fraud and foreign financial crimes from carrying criminal penalties, only civil penalties.
- deleted 6y ago[deleted]
- jasonjayr 6y agoIf this is an executive order then it can be struck down as soon as the next president is sworn in. Executive orders are easy-come, easy-go ...
- dkjaudyeqooe 6y agoIndeed, this is just mindless showboating. One day Trump will refer to this as some sort of achievement or having struck out at "the enemy". That is the point.
- peteretep 6y agoWhile true, it looks pretty reasonable to me, and I'm not sure why Biden would knock it down? The weirdest thing about it is why a lame-duck administration with a day or two to go is issuing reasonable-looking executive orders.
- chris11 6y agoI'm not quite sure what specific problem is being solved. Part a sounds ok, but sounds more political than practical. I don't like requiring proof that a person knowingly broke a regulation to criminally charge them. I can think of a few examples where that would have been good. But I think generally the US doesn't prosecute large scale violations enough. Deep Water Horizon, the Flint water crisis, the housing crisis, and the Volvo emissions scandal are all examples where almost no one went to jail. This seems like it would cripple environmental protection and make corporate legal defense much easier. It might have some benefit for small businesses. But it doesn't protect against heavy fines. And my current assumption is agencies are already not likely to settle with criminal charges.
- peteretep 6y agoThis is the article (from a decade ago) that sticks in my mind: https://www.economist.com/leaders/2010/07/22/rough-justice https://www.economist.com/leaders/2010/07/22/rough-justice > America imprisons people for technical violations of immigration laws, environmental standards and arcane business rules. So many federal rules carry criminal penalties that experts struggle to count them. Many are incomprehensible. Few are ever repealed, though the Supreme Court recently pared back a law against depriving the public of “the intangible right of honest services”, which prosecutors loved because they could use it against almost anyone.
- bpodgursky 6y agoBefore criticizing this executive order, carefully consider whether you are in possession of any wild bird feathers — a federal felony, whether or not the action was via criminal poaching, or... picking up a feather on a hike. https://thecriminallawyer.tumblr.com/post/29326904495/16-a-problems https://thecriminallawyer.tumblr.com/post/29326904495/16-a-p...
- gotoeleven 6y agoAlso consider if any of you may have sodomized a Texan in the 1990s.
- mxcrossb 6y agoNo way, if I read that link suddenly I’d be culpable! Also I just lost the game. But from my reading I think this order only applies to business regulations, so you might want to delay your next bird feather gathering party.
- AlotOfReading 6y agoThat particular law doesn't care how you acquired the feather or why. Mere possession is the crime. It's intended to protect native species from hunting and poaching by entirely outlawing any markets for bird parts without specific permission. Not that objectionable in my opinion, but it does sound a bit silly out of context.
- tony101 6y ago"New York Gov. Cuomo ruffles feathers by revealing illegal eagle keepsake" https://abcnews.go.com/US/york-gov-cuomo-ruffles-feathers-revealing-illegal-eagle/story?id=57149539 https://abcnews.go.com/US/york-gov-cuomo-ruffles-feathers-re...
- froh 6y agoThis is counter thousands of years of legal tradition. https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat: > Ignorantia juris non excusat (Legal principle) > Ignorantia juris non excusat or ignorantia legis neminem excusat (Latin for "ignorance of the law excuses not" and "ignorance of law excuses no one" respectively) is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely by being unaware of its content. > European-law countries with a tradition of Roman law may also use an expression from Aristotle translated into Latin: nemo censetur ignorare legem (nobody is thought to be ignorant of the law) or ignorantia iuris nocet (not knowing the law is harmful). And if Wikipedia is no authority for you maybe the bible is: Leviticus 5:17: "If a person sins and does what is forbidden in any of the LORD's commands, even though he does not know it, he is guilty and will be held responsible."
- deleted 6y ago[deleted]
- AnthonyMouse 6y agoNo. "Ignorance of the law is no excuse" is what you say to the defendant who claims they can't be prosecuted because they didn't know. This is about, in essence, prosecutorial discretion. If everybody was prosecuted for breaking all the laws they didn't know existed, everybody would be in prison. Also, the old principle was reasonable when the law consisted of things like "don't kill people or steal stuff" which everybody can be reasonably expected to know whether or not they ever read the book where it's written down. That doesn't quite work when you're talking about every obscure detail of the 70,000 pages in the Federal Register.
- bawolff 6y agoReally? Because the bible has all sorts of weird rules in it that seem kind of arbitrary and certainly not self-obvious. The principle is reasonable because otherwise everyone would just claim they didn't know regardless of if they did
- 6y ago
- wolverine876 6y agoThe Trump administration has issued many rules in its waning days. For example, they dramatically changed diplomatic practices toward Taiwan and shifted military responsibility for Israel from European Command to Central Command (you can lookup its impact). The rules won't be put into effect, afaict - there's no time - and are worthless for the American people. If the Trump administration thought they were worthy, presumably they would have enacted them years ago when Trump have could utilized them. AFAIK, it's like a CEO changing a bunch of policies on their last day at the company. Now the only purpose I divine is to undermine the American government or score political points. You can ignore it, but then there is no reason for it ever to stop.
- jgilias 6y agoUm... Is he 'ordering' to change the US legal system from a common law system to one closer to roman law? Ok.
- PixyMisa 6y agoNo. He's telling regulatory prosecutions to focus on cases where they can show that the defendant was duly informed of their violations and did not attempt to remedy them. Which seems appropriate to me, most of the time.
- underseacables 6y agoI always thought ignorance of the law is no excuse is something wonky the rich could avoid.
- spoonjim 6y agoThe language here doesn’t sound like it was written by a professional lawyer, more like a Reddit comment. Hardly matters, I expect Biden will just blanket reverse these executive orders on Wednesday.
- yboris 6y agoA great book on the topic: Overcriminalization: The Limits of the Criminal Law by Douglas Husak One important take away for me was that the way things are set up now is you often can't just commit one crime. For example, a simple burglary ends up with "breaking and entering", "trespassing", "theft", etc. This way, the prosecutor "throws the book at you" and if all the crimes apply, you are facing 50+ years in jail. You are then pressured to skip the court system and accept a plea bargain without facing a jury of your peers. This is a perversion of the judicial system. https://www.amazon.com/Overcriminalization-Limits-Criminal-Douglas-Husak/dp/0195399013 https://www.amazon.com/Overcriminalization-Limits-Criminal-D...