Criminal Offense Justification Act Exposed

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The Criminal Offense Justification Act was considered by ALEC's Public Safety and Elections Task Force at the 2011 States and Nation Policy Summit on December 2, 2011. This bill was part of the ALEC task force agenda between 2010 and 2012, but due to incomplete information, it is not known if the bill passed in a vote by legislators and lobbyists at ALEC task force meetings, if ALEC sought to distance itself from the bill as the public increased scrutiny of its pay-to-play activities, or if key operative language from the bill has been introduced by an ALEC legislator in a state legislature in the ensuing period or became binding law.

ALEC Draft Bill Text


This Act requires justification for enacting new criminal offenses or making changes to existing criminal offenses. The Act would require new criminal laws to take into account the crime’s prevalence, relation to current laws, and similarity to existing offenses to prevent the proliferation of unnecessary criminal laws or changes to existing criminal laws.

Model Legislation

{Title, enacting clause, etc.}

Section 1. {Title}

This Act may be cited as the “Criminal Offense Justification Act.”

Section 2. {Legislative Intent}

(A) To prevent the proliferation of unnecessary criminal laws or changes to existing criminal laws.

Section 3. {Definitions}

(A) “Criminal Offense” means an act punishable by law.

(B) “Mens Rea” means the criminal intent of the offender. It is the mental element of a criminal offense.

(C) “Analysis” means a description and evaluation of the expected effects of the new criminal offense or proposed changes to existing criminal offenses. An analysis must include a written documentation of all assumptions made when performing the analysis.

(D) “Legislative Counsel” means a nonpartisan legislative agency that provides bill drafting, computing, and legal, scientific, and other research services for the Legislature. This includes appropriate think tanks or state organizations as determined by legislature.

Section 4. {Requirements of New or Altered Criminal Laws}

(A) Any legislative measure which creates a new criminal offense, increases or decreases the crime classification of an existing criminal offense, or changes an element of an existing offense that creates a new factual basis for the offense is to include a written analysis performed by {insert appropriate state legislative counsel or think tank}. The analysis is to include one or more of the following to prevent the proliferation of unnecessary criminal laws:

(1) A description of the wrongful conduct and harms that the legislative measure is intended to address, including a description of the inadequacies of existing law to address the wrongful conduct and harms;
(2) A description of the elements of the new criminal offense, or a description of the new, amended, or additional elements of an existing crime, and a description of how each of the criminal offense’s mens rea or criminal-intent requirement in the crime should be interpreted and applied to each element of the crime;
(3) A written assessment of whether the wrongful conduct covered by the new criminal offense, or by changes to an existing criminal offense, may be charged as a crime under current [insert state] law or addressed by civil law or non-criminal administrative rules and regulations;
(4) A comparison of the proposed crime classification to the crime classification of similar types of offenses;
(5) A written evaluation of the current and anticipated future prevalence of the wrongful conduct that the proposed new criminal offense, or changes to an existing criminal offense, intends to address; and
(6) A written evaluation of the legislative measure’s expected fiscal impact on state and local law enforcement, prosecutorial and defender services, courts, probation services, and prison supervision personnel and populations, and an analysis of how any costs associated with the legislative measure will be paid.

Section 4. {Severability Clause}

Section 5. {Repealer Clause}

Section 6. {Effective Date}