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Observations about the proliferation of federal criminal laws are not new. This column regularly has documented the growing number of legal theories relied upon by the federal government to prosecute perceived white collar wrongdoing, along with the ever-expanding legislative response to the country’s various financial crises, which has resulted in hundreds of new criminal laws and the seemingly limitless application of existing criminal statutes. The resulting increase in the federal prison population, which is approximately 40 percent above capacity, costs taxpayers almost $7 billion a year and accounts for almost 30 percent of the Justice Department’s budget.1 Further, the length of sentences in certain white collar and serious fraud offenses has substantially increased in recent years, principally as a result of changes to the penalty provisions for such crimes in the United States Sentencing Guidelines.

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