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News | May 9, 2025

Executive Order 14294: Overcriminalization in Federal Regulations

This executive order addresses concerns that the Code of Federal Regulations has grown overly complex and carries criminal penalties that are known or knowable only by a few and imposes criminal penalties for conduct that lacks any criminal intent. The executive order states that criminal enforcement of regulatory offenses is disfavored, and that prosecution of criminal regulatory offenses is most appropriate for persons who know or can be presumed to know what is prohibited or required by regulation. Therefore, the executive order directs the attorney general to provide a report within 365 days of the order that lists all criminal regulatory offenses enforceable by agencies or the Department of Justice, the range of potential criminal penalties for a violation and the applicable mens rea standard (the intention or knowledge of wrongdoing that constitutes part of a crime) for the criminal regulatory offense. The order discourages the use of strict liability criminal regulatory offenses which are those that do not require proof of a defendant’s knowledge of or intent to violate the regulation. To that end, it requires all notices of rulemaking and final rules published in the Federal Register should explicitly state a mens rea requirement for each element of a criminal regulatory offense. The executive order also directs the head of each agency to examine its statutory authorities to determine if there is a default mens rea standard that can be adopted by the agency unless a specific regulation states an alternative standard.

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