Resolution on Transparency and Accountability in Criminal Law
This resolution upholds the principles of transparency and accountability in government when it comes to the creation and enhancement of criminal laws. The state of [insert state here] appreciates the vital role that criminal law plays in protecting public safety and ensuring justice for victims. At the same time, given that criminal law entails the most coercive form of regulation a government can impose, it is critical that, before the body of criminal law in a state is modified, the proposal be fully vetted by lawmakers and the public and that only duly elected legislative bodies be empowered with the authority to criminalize conduct. By requiring that legislation introduced which would create or enhance a criminal penalty so state in its caption, include a fiscal note that encompasses both state and local costs, and that all offenses be created and enhanced by democratically elected bodies rather than unelected bureaucrats, this resolution promotes a level of transparency and accountability that is proportionate to the serious consequences associated with criminal laws.
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 more than 4,500 federal statutory crimes and thousands more regulatory crimes created by agency rulemaking; and
WHEREAS, as an example, in the last decade in Texas, an average of more than 40 new criminal laws and sentencing enhancements have been passed in each legislative session, contributing to a body of law that now has more than 1,700 offenses, including felonies relating to harvesting oysters, and that certain Texas statutes allow agencies to impose criminal penalties for any violation of their rules; and
WHEREAS, there have been recent 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; 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.
Approved by ALEC Board of Directors on January 15, 2012.