Originally published at The Orange County Register by James R. Copland and Rafael A. Mangual | 11/17/16
Mariza Ruelas, a single mother in Stockton, California, is facing possible jail time for offering to sell her homemade ceviche, a Latin American seafood dish, through a Facebook group in which users swap recipes and occasionally swap meals. A man took her up on her offer, but unbeknownst to Ms. Ruelas, he was a government agent working on an undercover sting operation targeting those who sell food without a license.
Ms. Ruelas’s case is part of a trend of “overcriminalization,” a term describing the rapid expansion, and increased complexity, of criminally enforceable rules and regulations regarding conduct that is not intuitively wrong.
At the federal level alone, there are an estimated 300,000 criminally enforceable rules and regulations. The five states we have studied to date in our “Overcriminalizing America” research project average more than 570 percent more sections in their criminal codes than in the Model Penal Code, the template established by leading legal scholars that forms the criminal-law basis for most states, and they are enacting, on average, more than 42 new crimes on the books, each and every year. More than three-fourths of these new crimes have been scattered around state statutes outside the criminal codes themselves. States also regularly outsource the creation of crimes to unelected commissioners, administrative agencies and even private licensing associations.
In 2013, California enacted the California Homemade Food Act, intended to help what the law called “cottage food operations” but still ensnared Ms. Ruelas. Any violation of the law’s multiple provisions — it numbers almost 7,000 words — is a misdemeanor. The law criminalizes food sales for anyone who has not registered paperwork with government authorities, and it prohibits such operations in kitchens that are also used to prepare family meals or wash dishes.
Clearly, Ms. Ruelas violated the express provisions of the act — even though she claims she meant to do nothing wrong. Traditionally, under American law and the British law upon which it is based, the state had to prove a “guilty mind” to prosecute an individual of a crime. Today, however, states regularly prosecute individuals for crimes that specify no necessary criminal intent. Fifteen states follow the Model Penal Code in mandating a default criminal-intent requirement where statutes are silent, but others, including California, assume that if the legislature fails to specify any level of criminal intent, no showing of intent is required.
Individuals acting in good faith like Mariza Ruelas should be able to go through daily life without having to worry about ending up behind bars. California could pursue steps to make its criminal law more manageable by enacting a criminal-intent default standard, requiring legislative votes on any regulatory crimes, or following the lead of other states that have held special legislative sessions or creating commissions to repeal outdated crimes and reform the criminal law. Special attention should be paid to the occupational licensing space.
While not entirely curative, adopting these reforms would represent a meaningful first step toward addressing the overcriminalization problem. Until then, well-meaning citizens like Mariza Ruelas will remain at risk of imprisonment for conduct as seemingly innocent as selling some homemade food for a few extra bucks.
James R. Copland is a senior fellow and Rafael A. Mangual a legal-policy project manager for the Manhattan Institute for Policy Research.