Protecting Americans From Overcriminalization Through Regulatory Reform
Record date: 2021-01-22
( printed page 6817) Executive Order 13980 of January 18, 2021 Protecting Americans From Overcriminalization Through Regulatory Reform By the authority vested in me as President by the Constitution and the laws of the United States of America, and to improve transparency with respect to the consequences of violating certain regulations and to protect Americans from facing unwarranted criminal punishment for unintentional violations of regulations, it is hereby ordered as follows: Section 1 . Purpose. In the interest of fairness, Federal criminal law should be clearly written so that all
What this record contains
- Federal Register document
- 2021-01645
- Publication date
- 2021-01-22
- Citation
- 86 FR 6817
- Issuing office
- Executive Office of the President
Official record excerpt
( printed page 6817) Executive Order 13980 of January 18, 2021 Protecting Americans From Overcriminalization Through Regulatory Reform By the authority vested in me as President by the Constitution and the laws of the United States of America, and to improve transparency with respect to the consequences of violating certain regulations and to protect Americans from facing unwarranted criminal punishment for unintentional violations of regulations, it is hereby ordered as follows: Section 1 . Purpose. In the interest of fairness, Federal criminal law should be clearly written so that all Americans can understand what is prohibited and act accordingly. Some statutes have authorized executive branch agencies to promulgate thousands of regulations, creating a thicket of requirements that can be difficult to navigate, and many of these regulations are enforceable through criminal processes and penalties. The purpose of this order is to alleviate regulatory burdens on Americans by ensuring that they have notice of potential criminal liability for violations of regulations and by focusing criminal enforcement of regulatory offenses on the most culpable individuals. Sec. 2 . Policy. It is the policy of the Federal Government that: (a) Agencies promulgating regulations that may subject a violator to criminal penalties should be explicit about what conduct is subject to criminal penalties and the mens rea standard applicable to those offenses; (b) Strict liability offenses are “generally disfavored.” United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978). Where appropriate, agencies should consider administrative or civil enforcement of strict liability regulatory offenses, rather than criminal enforcement of such offenses; and (c) 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. Sec. 3 . Definitions. For the purposes of this order: (a) “Agency” has the meaning given to “Executive agency” in section 105 of title 5, United States Code. (b) ” Mens rea” means the state of mind that by law must be proven to convict a particular defendant of a particular crime. There are several such mental states in the law applied by Federal courts. Two common mental states are “knowingly” and “willfully.” A defendant acts “knowingly” with respect to an element of the offense if he or she has knowledge of the essential facts comprising that element. In addition, a defendant “willfully” violates a statute if he or she acts with a “bad purpose” that is with “knowledge that his [or her] conduct is unlawful.” Model Criminal Jury Instructions (3d Cir. 2018), ch. 5, sec. 5.02 cmt. (quotation marks omitted). By contrast, strict liability offenses do not require the government to prove mens rea. For instance, the jury instructions for the United States Court of Appeals for the Third Circuit note that “[s]ome federal crimes are also strict or absolute liability offenses, without any mental state requirement.” Id. at ch. 5, General Introduction to Mental State Instructions. (c) “Person” has the meaning given it in section 1 of title 1, United States Code. ( printed page 6818) (d) “Regulatory offense” means any violation of a regulation promulgated by an agency. Sec. 4 . Promoting Regulatory Transparency. (a) All notices of proposed rulemaking (NPRMs) and final rules published in the Federal Register after issuance of this order should include a statement that describes whether individuals who violate any of the prohibitions—or fail to comply with any requirements—imposed by the regulation or rule may be subject to criminal penalties. Agencies should draft this statement in consultation with the Department of Justice. For purposes of this order, a regulation is treated as subjecting individuals to criminal penalties when violation of the regulation is itself a basis for criminal liability under Federal law. (b) The regulatory text of all NPRMs and final rules with criminal consequences published in the Federal Register after issuance of this order should, consistent with applicable law, explicitly state a mens rea requirement for each such provision or identify the provision as a strict liability offense, accompanied by citations to the relevant
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