Fighting Overcriminalization in Federal Regulations
This Executive Order (EO 14294) directs federal agencies to reduce and limit criminal enforcement tied to federal regulations. It responds to concerns that the Code of Federal Regulations contains many rules that carry criminal penalties—sometimes without a required guilty mental state—creating unpredictability and unfair criminal exposure for ordinary people. The order requires agencies to identify and publish the regulatory provisions that carry criminal penalties, clarify the required mental state for convictions (mens rea), favor civil or administrative remedies over criminal prosecutions for many regulatory violations (especially strict-liability rules), and adopt policies guiding when to refer regulatory violations for criminal prosecution. The practical effect is to increase transparency about which regulations are enforced criminally, push agencies to prefer non-criminal enforcement for many regulatory breaches, and press agencies to adopt clearer mens rea standards. It also creates new administrative work (reports, website postings, rule text changes) and could change how DOJ and agencies prioritize criminal referrals. The EO does not affect immigration or national-security enforcement and cannot override statutes or agencies’ legal authorities.
Key Points
- 1Agencies must inventory and publish criminal regulatory offenses: Within 365 days each executive agency, in consultation with the Attorney General, must submit to OMB and publicly post a list of all agency regulations that are enforceable by criminal penalty, the penalty ranges, and the mens rea (mental state) required for each offense. These lists must be updated at least annually.
- 2Criminal enforcement discouraged for unlisted offenses and strict-liability offenses disfavored: Prosecuting regulatory crimes not on an agency’s public list is “strongly discouraged.” The EO expresses a general policy that strict-liability offenses (offenses that do not require proof of a guilty mental state) are “generally disfavored.”
- 3Rulemaking transparency and mens rea statements required: Future proposed and final rules that may carry criminal penalties should include a clear statement saying the rule is a criminal regulatory offense, cite the authorizing statute, and the rule text should explicitly state the mens rea requirement for each criminal element. Agencies should consult DOJ on that statement.
- 4Agencies to consider a default mens rea and submit plans: Agencies must review whether they can adopt a background/default mens rea that would apply to regulatory crimes unless a rule states otherwise. After the initial inventory, within 30 days agencies must file with OMB a summary assessing whether existing mens rea standards are appropriate and, where lawful, propose plans to change mens rea standards and justify any deviations from the proposed default.
- 5Guidance on criminal referrals and factors to weigh: Within 45 days agencies must publish guidance explaining how they will approach criminally liable regulations and what factors they will weigh when deciding to refer matters to DOJ (e.g., harm or risk of harm, potential gain to defendant, specialized knowledge of the defendant, evidence of awareness of unlawfulness). The Attorney General should likewise consider whether an offense appears on the agency’s public report before initiating prosecutions.