Are the Yates Memorandum and the Federal Judiciary's Concerns About Over-Criminalization Destined to Collide?

Two powerful trends in federal criminal law are on a collision course. The Justice Department is expanding its efforts to prosecute individuals in every type of criminal case, highlighted by a September 2015 Department-wide directive issued by Deputy Attorney General Sally Yates. At the same time, there is growing concern by federal courts, led by the Supreme Court, that federal prosecutors are interpreting the law too broadly in too many cases and attempting to criminalize conduct that is not criminal. Other branches of government have also expressed concerns about over-criminalization, including members of Congress who introduced a series of bills to help address the problem.

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