Did you know that there are over 4,500 laws and 300,000 regulations in the United States that can lead to imprisonment? Congress has added an average of four dozen new laws to the legal code every year in an attempt to regulate activities—that do not warrant criminal punishment. State and local legislatures have added thousands of more laws and regulations on the books.
Originally, criminal laws focused on common law crimes such as murder, assault, theft, and other serious offenses that are universally condemned. Criminal punishment now threatens such a broad scope of often blameless conduct that virtually any citizen can be considered a criminal under state and federal law. The term used to describe this dangerous proliferation of criminal law and its unfair enforcement is “overcriminalization.”
In many cases, American citizens are being charged with crimes that they did not even know existed or that they did not intend to commit . This alarming situation is chronicled in the book, “Three Felonies a Day: How the Feds Target the Innocent” by Harvey Silverglate. Such prosecutions lack criminal intent, what is known in the law as mens rea.
Overcriminalization has also given rise to a growing grey area in the interpretation and execution of regulatory laws, sometimes with alarming consequences. Although government officials have the discretion to remedy regulatory violations in administrative or civil proceedings, too often they abuse that discretion and unfairly opt for draconian criminal punishments instead.
Overcriminalization and our country’s bloated, labyrinthine legal code should alarm anyone who cares about freedom. Prosecutors should remember Attorney General Robert H. Jackson’s address to the Second Annual Conference of U.S. Attorneys in April, 1940:
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. . . . Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character . . . [He should] select the cases for prosecution . . . in which the offense is the most flagrant, the public harm the greatest, and the proof most certain.
The goal of this website launched in April 2020 is to highlight the issue of overcriminalization and to facilitate common sense reforms to the legal system. To this end, this website is intended to be a resource of overcriminalization materials for use by the public, media, legislatures, academics, lawyers, and advocacy organizations. The latter group is listed under this website’s “Leaders” with links to their work in this area.
We welcome links to relevant news, published and original commentary, scholarship, podcasts, videotaped events, or cases of interest that we may share with our readers