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The dangers of over-criminalization and the need for real reform: the dilemma of artificial entities and artificial crimes.

Article Excerpt
Thank you for the opportunity to speak with you about this important topic today. Nearly ten years ago I delivered a speech in which I discussed the perils of over-criminalization and remarked that reform was needed before Congress further abused its power in creating more criminal statutes involving nontraditional criminal conduct. (1) While the passage of time has validated those concerns, I take no pleasure in having been proved justified in expressing them.

During that interim, there has been significant academic and practitioner thought devoted to the topic of over-criminalization by thoughtful individuals from diverse ideological groups. These groups and I share a common goal: to have criminal statutes that punish actual criminal acts, and not to criminalize conduct that is better sanctioned in civil and regulatory forums. Because of the serious corporate scandals we have observed over the past several years, which have focused more public attention on this subject, it is an especially appropriate time to assess this aspect of federal criminal law, and to consider real and substantive reform.

I choose to address this subject through an examination of what I call artificial entities and artificial crimes. As to artificial entities, we all know that the United States exceeds almost all other nations in the degree to which it treats an incorporated group of individuals as a separate entity. An incorporated group may be an artificial creation but, for all practical purposes, it acquires and maintains its own popular and legal persona. Although the popular persona may seek to alter itself through the exertions of public relations specialists, the legal persona persists as a stable being, separate and distinct from the individuals who perform its functions. And the corporation remains, in the eyes of the law, very much an entity of its own.

A legal entity in the form of a corporation can engage in activities of a kind and on a scale far beyond the capacity of individuals, and often can have an effect upon a nation far beyond that of natural persons. For that reason, many activities of such artificial entities--especially activities in areas where the public risks are perceived to exceed the public benefit--are appropriately considered subjects for governmental regulation. Such regulation commonly may be enforced through administrative proceedings or civil judicial proceedings. In the United States however, our Congress has increasingly also attributed to artificial entities responsibility for crimes. Moreover, over the course of the past several decades there has been a tendency in the United States to attempt to regulate what previously had been considered non-criminal behavior, through criminal prosecutions--as well as through administrative and civil actions. Many of the "crimes" that have been created by this process are also artificial, in the sense that they do not meet the criteria traditionally employed in determining that particular conduct deserves society's most severe condemnation.

Traditional criminal law coverage, of course, encompasses various combinations of acts with varying consequences and requires different mental states, which evidence volition or awareness on the part of the actor to a degree that he or she is deemed blameworthy. These acts are collectively more commonly known as the requirements of an actus reus and amens rea.

Having reached a point where both the perpetrators and their "crimes" can be artificial, we are confronted by some very real problems. These manifest...

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