America’s Overcriminalization Problem

Originally posted to Bloomberg Law Insight by Brett Tolman | October 19, 2020

We have too many laws that can land someone in jail. Estimates put the number north of 300,000 federal statutes and regulations that can be criminally enforced, and the consequences of America’s addiction to criminalizing nearly everything are sobering—1 in every 4 Americans has a criminal record.

We incarcerate more than 19% of the world’s prisoners but make up only 4% of the world’s population. And despite what “real crime” TV would have you believe, less than 2% of federal criminal defendants receive a trial in which the government’s case is put to the test; the vast majority of persons feel compelled to bargain away their constitutional rights in order to receive leniency because our criminal system is so unbalanced.

It may come as a surprise to some, but the Trump administration has been consistently taking steps to address these concerns. Unlike the president’s signing of the FIRST STEP Act, other measures seem to have been overlooked. Regulatory law isn’t everyone’s cup of tea, but the administration’s work to increase fairness in regulatory enforcement is worthy of more attention.

Agency ‘Guidance Documents’ Are Not Law

A federal prosecution needs to be based upon a law passed by Congress. But hundreds of thousands of regulatory laws adopted by agencies further expand the conduct that can be prosecuted. Those regulations are required to be adopted in a manner consistent with Constitutional due process principles reflected in the Administrative Procedure Act.

However, regulators started taking shortcuts and creating “guidance documents” that don’t satisfy APA requirements, and then relying on these “guidance documents” to bind Americans to standards that were never lawfully adopted. This practice is particularly unfair in a criminal case given the potential consequences to the accused.

Thankfully, the Department of Justice has amended its Justice Manual, a document that provides guidance to prosecutors, to clarify that agency guidance documents are not a substitute for law and that “mere noncompliance” with one cannot be the basis of criminal enforcement.

Several executive orders have expanded this rule to all federal agencies. As a former U.S. Attorney, I think it makes perfect sense for the DOJ to instruct its lawyers not to seek jail sentences for those who have merely failed to comply with a non-binding document, but sadly that has not always been true.

To understand the type of case that federal prosecutors can no longer bring, consider Todd Farha, a former health-care executive convicted of “defrauding” the Medicaid program. Farha was charged with criminal offenses based on the way his company, WellCare, filed expense forms to Medicaid that reflected its interpretation of the law.

The government had a different interpretation. The prosecution relied on informal agency guidance documents to convict Farha, even though the guidance was not binding and had never been the subject of public notice and comment. Unfortunately, a court rejected Farha’s appeal, stating that the company’s obligations were governed not only by the law but also by the informal guidance.

This had very real consequences—in a case that involved no harm to any patients and no “bogus” Medicaid claims, Farha was incarcerated for three years because his company failed to comply with a document that prosecutors can no longer rely upon. And he isn’t the only one.

‘Best Practices’ for Enforcement Fairness

I am glad to see that under current DOJ policy, the type of reasoning applied in the Farha case would no longer be acceptable. I am also encouraged to see that the administration has instituted other procedural protections, as set forth recently by Paul Ray, head of the Office of Management and Budget’s Office of Information and Regulatory Affairs in a memorandum directing agencies to review their practices in light of “principles of fairness.”

Included among the “best practices”:

  • Enforcement actions should be prompt and fair;
  • Targets of investigations should be informed when an investigation is closed;
  • There shouldn’t be multiple enforcement actions based on a single set of facts;
  • Performance metrics of government lawyers should incentivize fairness;
  • Favorable evidence should be provided to the accused;
  • Penalties should be proportionate; and
  • Enforcement should be free of coercion and unfair surprise.

In response to this directive, the Department of the Interior announced that all future referrals to the DOJ for prosecution will state whether the accused knew their conduct was prohibited and have made it clear that their agency will focus its “scarce enforcement resources on those who do not merely stumble into a violation, but choose to break the law.”

This list of procedural fairness measures might seem mundane to a law student—surely these are just restatements of what is already required when the government prosecutes a person. But those who practice criminal law realize how far from these ideals many cases have strayed.

We should all be heartened to see the executive branch taking these steps. There is a dire need to see these safeguards in all criminal cases. I hope that any future administration takes heed of these fundamental principles as it goes about the business of prosecuting its own people.

Brett Tolman is a former U.S. Attorney for the District of Utah and current founder and attorney at the Tolman Group, a firm focused on public policy and government reform.


Heritage Report: The FAA Drone Registry: A Two-Month Crash Course in How to Overcriminalize Innovation

Originally published at The Heritage Foundation by Jason Snead and John-Michael Seibler | 3/8/16

Two months: That is all the time an executive branch agency needs to create a crime.

With passage of the 2012 FAA Modernization and Reform Act, Congress explicitly told the Federal Aviation Administration to leave recreational drones alone, but the FAA has charged ahead anyway. In just two months, with no input from Congress or the public, unelected and unaccountable bureaucrats have devised a way to apply the pre-existing aircraft registration penalties to create a federal felony offense that can result in up to three years in prison and up to $277,500 in fines for failing to register as the owner of a qualifying drone—essentially a toy.

As bad as this is for unwary drone owners, the real legacy of the FAA’s drone registry may be much broader. To justify its rushed regulatory action, the FAA, relying on trumped-up claims about the risk and harms associated with drone use, has asserted its regulatory muscle to protect society from these as yet unrealized dangers. Such thinking has important ramifications for the regulation of innovation and may be only a foretaste of future regulatory actions that deter or dissuade adoption of some new and innovative technologies.

FAA Violation of Rulemaking Requirements

The FAA’s drone registry went into effect remarkably quickly.[1] On October 22, 2015, the FAA published a rule determining that drones are subject to existing aircraft registry requirements.[2] One month later, the agency’s special drone registry task force, composed of government and industry representatives, released a report outlining specific recommendations for a “streamlined” registration process.[3] Three weeks later, the FAA published its “interim final rule” establishing the recreational drone-owners’ registry.[4] Seven days after its release, the rule went into effect, and it officially became a federal felony to operate a drone weighing more than 0.55 pounds without first registering as a drone owner.

From start to finish, the regulatory process took two months to complete.

Agency rulemaking is governed by two primary sources of law: the Administrative Procedure Act (APA) and the Chevron doctrine, which enables agencies to promulgate regulations when Congress has delegated that power with adequate “guidelines.” The FAA registry pushes the boundaries of what an agency can do under both.

The swiftness of the FAA’s drone action was possible only because it bypassed many of the requirements set forth in the APA, which governs most agency rulemaking. Under the APA,[5] administrative agencies must generally publicize their intent to promulgate new regulatory rules by filing a notice of proposed rulemaking (NPRM) in the Federal Register. Interested parties then have from 30 to 60 days to file comments with the agency, which then must consider the public’s input before publishing a final rule. Under the APA, a new regulation generally cannot take effect for at least 30 days after its final publication.[6] This process can take months or years to complete. The requirements of the APA clearly place a premium on public involvement, transparency, and fair notice over swiftness in the regulatory process.

There are exceptions, though, since circumstances can arise that require unusually rapid action on the part of regulatory bodies. To that end, the APA creates a “good cause” exemption to the notice-and-comment process if an agency can show that adhering to the APA’s requirements is “impracticable, unnecessary, or contrary to the public interest.”[7] This is meant to be a narrow exemption, not a way to circumvent the APA’s broader requirements merely for reasons of bureaucratic expediency.

In creating its new drone-owners’ registry, the FAA claimed this exemption,[8] owing to the immediate dangers that the agency has alleged stem from the proliferation of drones in the national airspace.[9] According to the FAA, “it is critical that the Department be able to link the expected number of new unmanned aircraft to their owners and educate these new owners prior to commencing operations.”[10] But there are reasons to doubt the FAA’s claims that drones have suddenly become a problem and that it could therefore not countenance any delay.

  • The rapid growth of small, recreational drones is not new; in fact, Congress legislated on the subject of drone policy in 2012, fully three years before the FAA claimed a sudden exigency to justify rushing its registry into effect.
  • Claims of immediate danger are greatly exaggerated. There is no documented instance of a drone colliding with another aircraft, and it is unclear how dangerous such a collision would be.
  • The number of incidents—interference with emergency services, near-collisions, and other criminal misdeeds—is insignificant compared to the number of drones in circulation. For example, the FAA reported 764 unconfirmed drone sightings near airports or aircraft over an 11-month period at a time when there were possibly as many as a million registry-eligible drones in the hands of consumers.[11]

A full analysis of the FAA’s claimed APA exemption is beyond the scope of this paper, but it is clear that there is reason to doubt the validity of the agency’s claims. In the process of rushing its registry, the FAA exposed hundreds of thousands of drone owners to steep civil and criminal penalties for conduct that is not inherently wrongful and that was not unlawful before the rule went into effect.

The U.S. Supreme Court’s 1984 opinion in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.[12] clarified when and how a federal agency can make binding rules.[13] Congress can and often does delegate its legislative power to agencies with guidelines to administer a certain regulatory mission. This enables Congress to write broad legislation and leave the job of filling in the details to agencies. As recently stated by Judge Carlos T. Bea of the U.S. Court of Appeals for the Ninth Circuit, “The basic rule of Chevron deference is that if a statute is ambiguous, the federal agency charged with implementing the statute can issue regulations interpreting it to mean whatever the agency wants within the bounds of that ambiguity.”[14]

A lawsuit has now been filed challenging the FAA drone-owners’ registry, alleging that the rule violates the text and congressional intent of Section 336 of the FAA Modernization and Reform Act of 2012. The plaintiff, John Taylor, claims the registry “creates a burden on hobbyists that Congress did not want to create,” as evidenced by the language of Section 336, which states that “the agency may not create new rules if such model aircraft are ‘flown strictly for hobby or recreational use.’”[15] The nonprofit group TechFreedom has also filed a lawsuit challenging the registry on similar grounds.[16] If either of these lawsuits succeeds, the courts could overturn the drone registration process; if they do not, that task will most likely be left to Congress.

Power to Create the Drone Registry Not Delegated by Congress

Only Congress can enact a federal criminal law.[17] In 1911, however, the Supreme Court held in United States v. Grimaud that Congress could delegate legislative authority to federal agencies to issue regulations and could also enact legislation making it a crime to violate those regulations.[18] More recently, in United States v. O’Hagan,[19] the Court did not object to Congress “authorizing the Securities and Exchange Commission to make rules combating securities fraud and to make violations of these rules crimes.”[20]

But here it seems clear that the FAA was not empowered either to criminalize the failure to register a recreational drone or to require its registration in the first place. While agencies get deference under Chevron to interpret vague and ambiguous statutes, the statute in this instance is not ambiguous, so Chevron should not apply.

In 2014, the Supreme Court declined to hear a criminal appeal in Whitman v. United States. While they agreed with the Court’s decision not to hear the case, the late Justice Antonin Scalia, joined by Justice Clarence Thomas, clarified that “[u]ndoubtedly Congress may make it a crime to violate a regulation, but it is quite a different matter for Congress to give agencies—let alone for us to presume that Congress gave agencies—power to resolve ambiguities in criminal legislation.”[21] While Grimaud and later cases like O’Hagan affirm agencies’ ability to write regulations that implement statutory objectives even where Congress attaches a criminal penalty by statute, “agencies cannot overlook[] the reality that, if Congress wants to assign the executive branch discretion to define criminal conduct, it must speak ‘distinctly.’”[22] In the context of the FAA drone registry, Congress did not so speak.

In the case of the FAA registry, Congress did provide a penalty and defined when it should apply: 49 U.S.C. § 46306(b)(5) provides that the owner of an aircraft “not used to provide air transportation” and “eligible for registration” who “knowingly and willfully operates, attempts to operate, or allows another person to operate the aircraft” is subject to imprisonment for three years and fines up to $250,000.[23] Congress also provided, however, in Section 336 that “the agency may not create new rules if such model aircraft are ‘flown strictly for hobby or recreational use.’” Moreover, Congress has given the FAA the authority to register only aircraft, not aircraft owners, which is how the FAA has set up its drone-owners’ registry to function.[24]

In addition to the fact that the FAA acted unlawfully here, the FAA drone registry merits reconsideration because it needlessly and hastily resorted to criminal penalties when civil fines would have sufficed to satisfy the government’s interests.[25]

A Misuse of Criminal Law

By contrast to the over 300,000 regulatory crimes that exist today, there were only nine felonies at common law, including treason, murder, robbery, and arson.[26] If the FAA’s registration requirement seems out of place when compared with those crimes, it is because criminal laws and regulations are meant to serve different purposes. Criminal laws “enforce the minimum substantive content of the social compact”—“the moral code that every person knows by heart”—“by bringing the full moral authority of government to bear on violators.”[27] Regulations “efficiently manage components of the national economy using civil rules, rewards, and penalties to incentivize desirable behavior without casting aspersions on violations attributable to ignorance or explanations other than defiance.”[28]

Treating such relatively trivial conduct as failing to register a child’s toy the same way we treat “murder, robbery, or theft ‘ignores the profound difference between the two classes of offenses and puts parties engaged in entirely legitimate activities without any intent to break the law at risk of criminal punishment.’”[29] This problem is only compounded by the fact that by the FAA’s own estimates, there may be as many as a million registry-eligible drone owners, and this population grows daily.

Yet the FAA cannot guarantee that all—or even most—of this group is aware of the registration requirement or that they face draconian criminal penalties for failing to comply. Since most people do not think to check with a federal agency before using their latest toy or gadget, this leaves a significant and growing segment of the population needlessly exposed to criminal liability. The explosive growth of federal criminal law and the dramatic expansion of the administrative state have gone hand-in-hand.[30] Regulations like the FAA drone registration requirement generally make it all but impossible for individuals to know which of their toys—or any other things considered potentially “dangerous”—are permissible today but will make them felons tomorrow.

Criminalizing Innovation

The significance of the FAA’s registry extends beyond its immediate impact on drone owners: It sets a precedent for criminalizing other innovations utilizing “emergency” rulemaking procedures premised on overblown claims of harm. While this is a particularly egregious abuse of the criminal law, government has a history of criminalizing or threatening to criminalize innovation under the “precautionary principle,” the belief that “because a new idea or technology could pose some theoretical danger or risk in the future, public policies should control or limit the development of such innovations until their creators can prove that they won’t cause any harms.”[31]

Innovations affected by precautionary government action include commercial use of the Internet (until 1989);[32] an “at-home 99 genetic analysis kit”;[33] 3-D printing;[34] Caller ID;[35] Uber and Lyft, transportation services offered as an alternative to traditional taxi cabs;[36] Airbnb and other short-term home rental companies offering alternative vacation rentals;[37] driverless cars;[38] and FWD (“Skype before Skype was Skype”),[39] which eventually shut down in part because U.S. attorneys “put the reigns on FWD to seek FCC approvals” while “foreign founders of Skype proceeded apace with no regard for U.S. regulatory approvals.”[40]

Criminalizing or otherwise restraining technologies like e-mail sounds laughable today, but e-mails were new and strange once, and like the driverless and Internet-connected cars just beginning to emerge in the market today, people felt that “the more we learn about [them]…the more we’re learning to fear them.”[41] Telephones, too, were new and strange once, but “people quickly adjusted to the new device. ‘Ultimately, the telephone proved too useful to abandon for the sake of social discomfort.’”[42] When the telephone morphed into the cellular phone, the public once again became alarmed over the possibility of cell phone radiation causing cancer. That fear eventually proved to be unfounded, but imagine the consequences and the cost, both social and economic, if the government had banned cell phones until that risk was definitively disproven.

This thinking is antithetical to the core premise of a bottom-up, market-based economy and threatens technological progress, entrepreneurship, and prosperity. Precautionary rulemaking also (ironically for a theory premised on protecting society from unknown harms) leaves society exposed to “existing hazards” that new technologies might otherwise remedy. Drones, for example, might be useful tools in fighting wildfires and providing environmental disaster relief, or detecting threats to community safety, or performing tasks that would otherwise place a human being in danger. Public policies that, based on unproven potential risks, prevent or slow the development of those capabilities force society to forego the opportunity to benefit from social adaptation and repeated trial and error.[43]

Legislators and policymakers are standing by to capitalize on irrational fears or discomforts by introducing new legislation and regulations and claiming that such measures are necessary to protect the public from dangerous unknown technologies when, in fact, those fears are overblown.[44] Often, these claims are hyped to distract from other motives, whether it be protecting an entrenched and politically connected interest, enhancing one’s notoriety, or establishing regulatory purview over an expansive new sector. The public would be better served by policies that allow innovative technologies to be brought to market and that let the market and society sort out the winners and losers.


Drones are one of many emerging technologies that can legitimately be both celebrated and feared. The question becomes: How will government respond to new technologies, and can prosecutors and judges continue to do their jobs without new criminal penalties? Permitting a dynamic, bottom-up approach—where markets and social norms govern individuals’ interactions with new technologies—would be a more efficient regulatory response than a rigid, top-down, criminal law approach that threatens to deprive society of the benefits of innovation.

—Jason Snead is a Policy Analyst and John-Michael Seibler is a Visiting Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. This is the second of five Issue Briefs on how the FAA’s drone registry represents the stifling criminalization of innovation.


Heritage Report: Overcriminalization: The Legislative Side of the Problem

Originally published at The Heritage Foundaton by Paul J. Larkin, Jr. | 12/13/11

Abstract: The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization.” This phenomenon is likely to lead to a variety of problems for a public trying to comply with the law in good faith. While many of these issues have already been discussed, one problem created by the overcriminalization of American life has not been given the same prominence as others: the fact that overcriminalization is a cause for (and a symptom of) some of the collective action problems that beset Congress today. Indeed, Congress, for a variety of reasons discussed in this paper, is unlikely to serve as a brake on new, unwarranted criminal laws, let alone to jettison broad readings of those laws by the courts. Therefore, the key to curbing overcriminalization is the American public: It is the people who, if made aware of the legislative issues that enable overcriminalization, could begin to head off such laws before the momentum for their passage becomes overwhelming.

The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization”—that is, the promiscuous use of the criminal law to remedy numerous perceived social ills by relegating them to the principal government actors in the criminal justice system (police, prosecutors, defense counsel, judges, and jailers) in order to regulate through criminalization. Four of the hallmarks of overcriminalization are:

  1. The use of strict liability crimes (i.e., offenses that dispense with the requirement that a person act with a “guilty mind,” however defined) to outlaw conduct, particularly in commercial and regulatory fields;
  2. The passage of several laws applicable to the same conduct, which enables prosecutors to multiply charges and thereby threaten a person with a severe term of imprisonment if he does not accept a plea bargain;
  3. The delegation to administrative agencies of the responsibility for filling in the details of a substantive criminal law, which thereby vests in the agency responsible for enforcing the law the power also to define its terms; and
  4. Enforcing through the criminal law conduct that, if it is to be enforced by the government at all, should be enforced through administrative or civil mechanisms.

This phenomenon is likely to lead to a variety of problems for a public that is trying to comply with the law in good faith. At bottom, the flaws in overcriminalization are much the same ones that the Supreme Court long has identified in unduly vague criminal laws: They render it impossible for an individual to understand where the line of criminality lies (indeed, the average person’s ability to understand and comply with a legal code varies inversely with its prolixity and reticulation); they empower prosecutors to make arbitrary charging decisions and coerce parties into pleading guilty by threatening them with potentially massive sentences should they stand trial; and, in cases that go to trial, they leave to the courts the job of deciding after the fact whether someone broke the law, a job that is tantamount to deciding whether to shoot the survivors.

Most of these problems have been discussed extensively in other publications, such as “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law,” a report prepared by The Heritage Foundation and the National Association of Criminal Defense Lawyers.[1] But one problem created by overcriminalization of American life has not been given the same prominence as the ones noted above: Overcriminalization is a cause for (and a symptom of) some of the collective action problems that beset Congress today. Those difficulties are discussed here.

Legislative Limitations

Legislators have few options in addressing criminal justice problems. To start, they cannot get involved in the decisions in a specific case. The Due Process Clause of the Constitution quite rightly keeps legislators from meddling with specific defendants in particular cases, and any attempt to do so can (at least potentially) compromise the government’s ability to prosecute that party.

Passing legislation, approving law enforcement agencies’ budgets, and conducting public oversight hearings are the principal tools that legislators can employ to affect the crime rate, but those options have their limitations. The last two options work only indirectly by, for example, increasing the number of investigative and support personnel or spurring the existing ones to do a better job. Only through legislation creating new crimes, upping the sentences for offenses already on the books, or reducing the procedural or evidentiary burdens on the police and prosecutors can a legislator have a direct effect on crime.

Even then, however, there are additional limits. The Ex Post Facto and Bill of Attainder Clauses (Art. I, §9, Cl. 3 and § 10, Cl. 1) keep legislators from pursuing the most direct ways to deal with crime: passing a new criminal statute making past conduct an offense, retroactively enhancing the penalties already on the books, or making an outlaw out of a specific individual in a statute itself.

Each of these limitations serves legitimate, important purposes. Ironically, though, they sometimes can wind up channeling legislators into waters that create problems at least as serious as the ones that the U.S. Constitution seeks to avoid.

A New Set of Problems

Since the 1960s, the Supreme Court of the United States has regulated the investigative and trial processes. Using the Fourth, Fifth, and Sixth Amendments as the vehicles, the Court has fenced in nearly every investigative and trial technique—e.g., searches, seizures, arrests, interrogation, lineups, discovery, questioning or immunizing defendants and witnesses, and so forth—with a variety of different rules. The Court also has made clear that Congress cannot tamper with the rules it has created, such as the now-(in)famous Miranda warnings.[2]

But the Court has left unregulated the legislature’s prerogative to define crimes and affix punishments, as well as a prosecutor’s ability to exercise discretion in charging and plea bargaining. As the late Harvard Law School Professor William Stuntz has noted, the result is that, in today’s criminal justice system, those two players have become closer allies than ever.[3]

Here is how such an alliance develops: Some legislators, acting on the presumption that prosecutors will exercise judgment in deciding how far to push the edge of the envelope, will write broadly worded statutes in order to maximize the prosecutor’s discretion. Other legislators, assuming (and perhaps hoping) that expanding criminal liability will affect only those near the periphery of the laws in existence, also will support expanded criminal liability and lengthier sentences because they, too, do not expect prosecutors to go hog wild with their enhanced weapons.

The result is that even legislators acting solely with the public interest in mind will wind up enacting new criminal laws that no one expects to receive the broad construction that their text permits. Of course, other, perhaps less noble-minded legislators will see the process as a no-lose situation: They create the appearance of having remedied a social ill without any risk of a backlash from a politically powerful constituency and without the burden of deciding how to apply the law on a case-by-case basis.[4]

By contrast, there is little constituency for cutting back on the reach of the criminal law. Loosening criminal procedures can be justified on the grounds of de-handcuffing the police or bolstering the efficiency of the trial process. Tightening those same procedures can be supported by the need to protect the innocent or everyone’s civil rights. Broadening the reach of the criminal law can be sold as an effort to reach miscreants that the courts mistakenly (or involuntarily) let walk or as an attempt to adapt old laws to new criminal schemes. That much is fairly straightforward.

What argument, however, will persuade legislators to cut back on a prosecutor’s or court’s generous reading of a criminal statute or to reduce the number of years of imprisonment that a law authorizes? That the legislature previously got it wrong? That the courts erred in sending guilty people to jail? That the prosecutor abused the authority that the legislature gave him and the courts upheld? After all, the courts are widely seen as being experts in interpreting criminal laws; legislators ordinarily support prosecutors’ desire to maximize the weapons at their disposal in the interest of fighting crime; prosecutors ordinarily serve the public good when making charging and plea decisions; and, if the law were unquestionably just and justly prosecuted without exception, there might be no better example of letting the guilty go scot-free.

As a result, few legislators may see any benefit from being “soft on crime,” and if legislators do not care about overcriminalization, why should the public?

“Hard” vs. “Soft” on Crime: A Misguided Legislative Tendency

Why is the legislative tendency toward overcriminalization misguided? There are three short answers.

First, there is the principle that Chief Justice John Marshall articulated in Marbury v. Madison in 1803: “The Government of the United States has been emphatically termed a government of laws, and not of men.”[5] Leaving the interpretation of criminal laws to regulatory agencies, prosecutors, and courts turns that proposition on its head. The legislatures themselves should define the laws so that the average person knows just where the line is that divides lawful from unlawful conduct and just how closely it can be approached.

Second, having overly broad laws or laws whose elements are filled in by politically unaccountable regulators runs afoul of the criminal law tenet, traceable to the laws of the ancient Greeks and often voiced in the Latin expression nulla poena sine lege, that there is no punishment without law.[6] A law that is not readily available to or understandable by the average member of the public is tantamount to no law at all. In fact, the proposition that the public should be able to—and can—find, read, and understand the law, particularly the criminal law, is the moral foundation for the well-known proposition that “ignorance of the law is no excuse.” Take away the practical ability to read and understand the law, and the moral justification for using the criminal law as a tool for regulating conduct is also lost.

Third, making the same conduct a crime under numerous federal criminal statutes allows a prosecutor to threaten a defendant with a potentially massive sentence if he forgoes a plea offer and goes to trial.[7] Absent case-specific proof of racial animus or some other invidious intent, the Constitution does not bar a prosecutor from making good on his promise to throw the book at a defendant who declines a plea offer.[8] Thus, there is a good deal to be said for reining in the overcriminalization process.

There is one other point worth raising separately: The modern practice of making more and more conduct criminal or upping the penalties already on the books for existing crimes can be a misguided way to run a railroad. There already are thousands of federal criminal laws on the books—so many, in fact, that no one knows exactly how many there are.[9] But Senators and Representatives introduce bills that would create new crimes during every session of Congress.

Why? Are the laws on the books inadequate to the task? There is no doubt that technical or scientific advances (e.g., computers) can require new criminal legislation to address novel problems, and changing societal mores can justify revisiting familiar laws (e.g., spousal abuse). But does this nation really need dozens of laws (with more recommended by each new Congress) dealing with lying, cheating, stealing, and fraud?[10] Does America need to add a criminal penalty for the violation of every new commercial, safety, and environmental law? Does adding to the length of the terms of imprisonment for old crimes truly add anything to the retributive, deterrent, and incapacitative effect of the law? If it does, is that benefit worth its costs?

Perhaps legislators should turn their attention to engaging in oversight of the federal, state, and local law enforcement agencies that they arm with new weapons every time one of those bills is signed into law. Perhaps legislators should inquire what beneficial effect society is getting from the legal changes that have occurred over the past quarter-century before adding to the corpus of criminal law. Perhaps legislators should conduct, or demand that someone else accomplish the task of completing, a cost-benefit analysis of the existing body of criminal law before making it bigger.

That type of work is difficult and takes a long time to do well, but maybe it is more important than simply passing a new criminal law and declaring victory over, or even just taking credit for dealing with, a particular crime problem.

Public Awareness: The Key to Combating Overcriminalization

The Supreme Court has rewritten the rules of investigation and trial practice, and those rules will keep some innocent parties from being wrongly convicted, but regulating the procedure used by the police and lawyers will accomplish only so much. As long as lawmaking, charging, and plea bargaining are off-limits to the courts, there will be a risk that innocent parties will be charged with conduct that cannot and should not reasonably be deemed a crime but that exposes them to such a terrifyingly long prison term that, as a practical matter, they have little choice but to accept a plea deal offered by the prosecutor.

The legislative dynamic is not likely to serve as a brake on new, unwarranted criminal laws, let alone to jettison broad readings of those laws by the courts. The public needs to head off such laws before the momentum for their passage becomes overwhelming. And that can happen only if the public is aware of the legislative side of this problem.

Paul J. Larkin, Jr., is Senior Legal Fellow and Manager of the Overcriminalization Initiative in the Center for Legal and Judicial Studies at The Heritage Foundation.


Heritage Report: Solutions for America: Overcriminalization

Originally published at The Heritage Foundation by Marion Smith | 8/17/10


Federal criminal law has exploded in size and scope—and deteriorated in quality. Honest, hard-working Americans doing their best to be respectable, law-abiding citizens can no longer be assured that they are safe from federal prosecutors. Federal criminal law used to focus on inherently wrongful conduct: treason, murder, counterfeiting, and the like. Today, an unimaginably broad range of socially and economically beneficial conduct is criminalized. More and more Americans who are otherwise law-abiding are being trapped and unjustly punished. Congress must halt its overcriminalization rampage and begin to eliminate vague, overbroad criminal offenses that punish good people who violate one of the tens of thousands of federal criminal offenses without criminal intent.


  • Explosion of Federal Criminal Law. The number of criminal offenses in the U.S. Code increased from 3,000 in the early 1980s to 4,000 by 2000 to over 4,450 by 2008. Moreover, there is no letup in sight; rather, the pace appears to be constant or even accelerating.
  • Criminalization by Bureaucrat. Scores of federal departments and agencies have created so many criminal offenses that the Congressional Research Service itself admitted that it was unable even to count all of the offenses. The Service’s best estimate? “Tens of thousands.” In short, not even Congress’s own experts have a clear understanding of the size or scope of federal criminalization.
  • Deeply Flawed Criminal Offenses. The Heritage Foundation and the National Association of Criminal Defense Lawyers reported in May the results of a joint study finding that three out of every five new nonviolent offenses lack a criminal-intent requirement that is adequate to protect from unjust criminal punishment Americans who engaged in conduct that they did not know was illegal or otherwise wrongful.
  • Breakneck Pace Continues. Despite this rampant overcriminalization, Congress continues to criminalize at an average rate of one new crime for every week of every year (including when its Members are not in session). All inherently wrongful conduct has been criminalized several times over, yet from 2000 through 2007, Congress enacted 452 new criminal offenses.


  • Congress Must Justify All New Criminalization. Because federal law has already criminalized all inherently wrongful conduct many times over, Congress should be required to provide written analysis and justification of every new or modified criminal offense or penalty. The report should include a description of the problem each offense or penalty is intended to redress, any specific cases or concerns motivating the legislation, and a review of any overlaps it will have with existing federal and state law.
Explosive Growth of Federal Criminal Law
  • Congress’s Carelessness Should Not Endanger You. Federal law should codify the Rule of Lenity, thereby ensuring that the benefit of the doubt under vague, overbroad laws goes to the person being prosecuted, not to the government.
  • Honest Mistakes Should Not Result in Prison Time. Every criminal conviction must require proof beyond a reasonable doubt that the person acted with criminal intent. Federal criminal laws should require such proof. The time when a person can be arrested and incarcerated for failing, for example, to affix a federally mandated sticker to an otherwise lawful UPS package must come to an end.
  • Bureaucrats Should Not Be Making New Crimes. Congress should not “delegate” its power to criminalize to unelected officials in the scores of federal departments and agencies that it has created. Both common sense and constitutional principles hold that the decision as to whether something is important enough to send a person to federal prison should be made by the American people’s elected representatives.
  • Repeal Unjust Laws. Congress seems to have forgotten that it can repeal bad laws. It can and should. The worst, most unjust criminal offenses should be thrown into the legislative dumpster. Congress should start with offenses that allow Americans to be punished as criminals even if they did not know that they were doing something unlawful or otherwise wrongful and offenses that are vague, overbroad, or cannot be understood even by lawyers.