The U.S. Chamber Institute for Legal Reform (ILR) and the National Association of Criminal Defense Lawyers are co-sponsoring a symposium on Thursday in Washington D.C. focused on “The Enforcement Maze: Over-Criminalizing American Enterprise," featuring Southern Illinois University School of Law Professor Lucian Dervan.
For defendants facing penalties from the long list of regulatory crimes, the urge to settle creates a growing problem in the justice system.
“There currently … are around 300,000 regulatory crimes in the United States,” Dervan told Illinois Business Daily. “Given this number, it’s not really feasible for anybody, including the Department of Justice, to actually know each and every one of those regulatory crimes and how they apply.”
Dervan's research has long looked at plea bargaining, particularly in regulatory crimes. A 2012 study he conducted found that when faced with false misdemeanor charges, more than 50 percent of defendants accepted plea bargains -- admitting to the charges in exchange for a lenient sentence, even despite being innocent.
“If 56 percent of participants, who knew definitively that they had done nothing wrong, were willing to falsely confess ... then what would the rates be like if we were applying vague and broad regulatory rules that are hard to understand … then that gets to the issue of incentives.” Dervan said.
Part of the problems, he notes, is that this “overcriminalization” creates an incentive to plea bargain, which keeps the rule from being appealed in a higher court. This in turn prevents the rules from being evaluated and clarified. The plea bargains, Dervan argues, result in more regulations, which then result in more plea bargains.
“I think the symbiotic relationship is detrimental to our system of justice, because we have a court system that was created to allow challenges where a prosecution may lack sufficient evidence, or there may be a lack of clarity,” he said. “(The symbiosis) leads to a scenario in which those types of challenges are very rare.”
The impact of that lack of challenges extends beyond mere fines. Dervan points to the example of Dr. Peter Gleason, a Florida psychiatrist who was indicted in 2006 for “interstate commerce of a misbranded drug.” The misbranding in question was a series of lectures he gave in which he discussed his successful treatment of conditions using a drug that was not made for that purpose. He eventually pled guilty to a misdemeanor, which at first seemed unproblematic, according to Dervan, but resulted in the government pulling his ability to accept Medicaid, functionally ending his practice.
Gleason hung himself in 2011.
In what is a sad footnote to the case, the Supreme Court ruled for a co-defendant in the case, who chose to challenge it. The court ultimately found that truthful (or believed to be true) misbranding of prescription drugs was protected under the First Amendment, which Dervan said clarified the laws under which Gleason was charged.
To fix the problem, Dervan said that the country needs to openly discuss making it easier for defendants facing regulatory crimes to challenge the cases in court. Higher court challenges could bring clarity to a sea of regulations he said affects virtually all industries.
Dervan also said that Congress can add a default mens rea to all regulatory offenses that don’t otherwise specify. Mens rea requires prosecutor to prove that the accused knowingly committed the offense.
In addition to Dervan, the symposium will include Sen. Orrin Hatch (R-UT), a member of the Senate’s Finance Committee; Rep. Bob Goodlatte (R-VA), chairman of the House Judiciary Committee; and former Deputy Attorney General David Ogden.