Model Resolution

WHEREAS, the number and breadth of criminal laws has grown dramatically in recent years at the federal level and in many states; and

WHEREAS, there are now nearly 5,000 federal statutory crimes and an estimated 300,000 or more regulatory crimes created by agency rulemaking;^[1] and

WHEREAS, as certain states have large numbers of statutes or regulations promulgated by state agencies that carry criminal penalties, including, for example, felonies relating to harvesting oysters, and

WHEREAS, there have been consistent examples of members of Congress acknowledging they were unaware of what they were voting on, had not read the legislation before voting, and stating that Congress needed to pass the legislation so that it could later be determined what was in it; and

WHEREAS, many federal and state proposals that create and enhance criminal penalties do not include a comprehensive fiscal note that reflects the estimated costs to both the public and private sectors, including corrections, courts, prosecutorial expenses, public defenders and appointed counsel for indigent defendants, law enforcement, compliance costs for businesses, and other costs including any specific references to public-private partnerships in the criminal justice system; and

WHEREAS, the creation of new criminal penalties is often obscured because these penalties are buried in legislation that is thousands of pages such as the convoluted Dodd-Frank bill enacted by Congress; and

WHEREAS, federal and state agencies have created thousands of regulatory crimes based on purported implicit authority provided by catch-all statutory provisions allowing agencies to impose criminal penalties for violations of their rules which apply to conduct that has never been expressly criminalized by a statute duly enacted by the appropriate legislative body; and

WHEREAS, when conduct not expressly criminalized by statute can be criminalized on a daily basis by federal and state agencies, it is difficult if not impossible for individuals and businesses to keep track of the ever-growing body of criminal law; and

WHEREAS, the gravity of criminal law demands that those democratically elected policymakers who are directly accountable to the public determine what constitutes criminal conduct and that this power not be delegated to unaccountable bureaucrats; and

NOW, THEREFORE BE IT RESOLVED, that the state of [insert state here] shall require that all legislation creating or enhancing a criminal penalty so indicate in its caption; and

BE IT FURTHER RESOLVED, that all legislation creating or enhancing a criminal penalty be accompanied by a comprehensive fiscal note that sets forth the estimated costs to both the public and private sectors, including corrections, courts, prosecutorial expenses, public defenders and appointed counsel for indigent defendants, law enforcement, compliance costs for businesses, and other costs; and

BE IT FURTHER RESOLVED, that the state of [insert state here] shall not enact statutes that provide agencies with the power to criminalize violations of their rules unless the conduct involved is expressly prohibited by a legislatively enacted statute and that any existing catch-all statutes that purport to delegate criminal lawmaking to agencies be repealed or revised accordingly.

[1] Criminal Justice Reform at The Crossroads. John G. Malcolm. Texas Review of Law & Politics Vol. 20. P. 252 June 29, 2016.