Tag: count the crimes

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Making Criminals Out of All Americans

Originally published at Cato Institute by Jay Schweikert | April 25, 2018

Cases: Black v. US, Weyhrauch v. US

The specific language of the Fourth Amendment was largely a product of the colonists’ experience with the noxious institution of the general warrant. Historically, general warrants—and specifically, writs of assistance—gave law enforcement broad discretion to search wherever and whatever they deemed necessary, without the need to establish specific probable cause before a judicial officer. Such broad discretion enabled abusive, selective enforcement, and the colonists’ contempt for those arbitrary practices was a major cause for the Revolutionary War itself. But 227 years after ratification of the Fourth Amendment, we are tragically approaching a stealth resurrection of the general warrant, in the form of pretextual stops. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that the actual intent of law enforcement officers in making a stop—even unlawful intent, like racial discrimination—is irrelevant to the legality of a traffic stop under the Fourth Amendment, so long as there is probable cause to believe that some traffic violation occurred. The practical effect of this decision has been to give police officers nearly unfettered discretion to stop any person they choose at any time. After all, no one can actually operate a motor vehicle for an extended period of time without running afoul of some traffic law. Especially when combined with other areas of Fourth Amendment law that create expansive exceptions to the warrant requirement, Whren itself has already been described as the “twentieth‐​century version of the general warrant.” But if that were not bad enough, the Seventh Circuit, in an en banc decision, recently extended the Whren doctrine even to parking violations—and effectively, to any and all fine‐​only offenses, no matter how trivial. Especially in light of the rampant state of overcriminalization in our country today, that move represents an endorsement of the general warrant in all but name. We have so many criminal laws today that we cannot even count them all, and states routinely regulate a huge swath of generally harmless conduct that regular citizens engage in every day. If violation of any regulation whatsoever is sufficient to justify a police stop (regardless of whether that regulation was actually the motive behind the stop), then police can, in effect, stop anyone they want to. The Cato Institute has therefore filed an amicus brief urging the Supreme Court to grant cert in this case, reverse the Seventh Circuit, and reconsider the Whren doctrine entirely.

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Justice Gorsuch on Overcriminalization and Arbitrary Prosecution

Originally published at Cato Institute by Jay Schweikert | April 17, 2018

“Vague laws invite arbitrary power.”

That’s the opening line and general theme of Justice Neil Gorsuch’s concurring opinion in Sessions v. Dimaya, announced today. In this case, Justice Gorsuch joined the Court’s four “liberals” in a 5-4 decision holding unconstitutional a provision of the Immigration and Nationality Act, which renders deportable any alien convicted of an “aggravated felony.” This statutory phrase is defined to include a “crime of violence,” which itself is defined to include both crimes where use or threat of force is an element, as well as”any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” It was this last provision — the “residual clause” of the statute — that was at issue in the case. The majority held that this abstract definition was “impermissibly vague,” and thus a violation of the Fifth Amendment’s Due Process Clause.

In his separate opinion, Justice Gorsuch gave a detailed analysis of the history and legal foundations of the void-for-vagueness doctrine (largely in response to Justice Thomas, who questioned the propriety of this constitutional doctrine both here and in a similar prior case, Johnson v. United States). His concurrence argues that courts must review and strike down unconstitutionally vague statutes, not just to ensure fair notice to potential defendants, but also to enforce the separation of powers between the branches of government:

Under the Constitution, the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives. Allowing the legislature to hand off the job of lawmaking risks substituting this design for one where legislation is made easy, with a mere handful of unelected judges and prosecutors free to “condem[n] all that [they] personally disapprove and for no better reason than [they] disapprove it.”

Justice Gorsuch also made clear that subjecting vague statutes to meaningful judicial review is equally important in civil cases, where penalties are often at least as harsh as they are under the criminal law:

[I]f the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes—and often harsher than the punishment for felonies.

This analysis obviously has implications reaching far beyond the immigration context, and is encouraging for those concerned with overcriminalization and arbitrary law enforcement in general. Justice Gorsuch correctly notes that “[p]erhaps the most basic of due process’s customary protections is the demand of fair notice.” But today, we have so many criminal laws that it’s impossible to even count them all: at the federal level alone, we estimate that there are about 4500 criminal statutes, and around 300,000 regulatory crimes — many of which do not involve inherently wrongful conduct and lack any “mens rea” requirement (that is, you can be found guilty even if you had no idea you were acting unlawfully). Who could possibly claim that such a system gives the ordinary citizen “fair notice” of the conduct for which they can be punished?

This degree of overcriminalization also places enormous unchecked power in the hands of law enforcement and prosecutors. As Justice Gorsuch recognized, vague and expansive laws “invite the exercise of arbitrary power . . . by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” The staggering breadth of substantive criminalization today means that almost everyone is a criminal, whether they know it or not. If police and prosecutors are inclined to go after you, there’s almost certainly something they can find — whether or not that conduct is genuinely wrongful or harmful.

On the whole, Justice Gorsuch’s opinion in this case is an encouraging sign that he’s aware of and attuned to this set of concerns. Hopefully the newest member of the Court will continue to apply this level of exacting review to vague and arbitrary statutes across the board.

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Heritage Report: The Extent of America’s Overcriminalization Problem

Originally published at The Heritage Foundation by Paul Larkin Jr | 5/9/14

The Heritage Foundation and others have criticized the modern-day phenomenon known as “overcriminalization,”[1] the neologism given to the overuse and misuse of the criminal law.[2] Those criticisms have taken several forms: Legislatures pass too many statutes creating crimes (especially federal offenses); legislatures too frequently empower administrative agencies to define crimes or otherwise “fill in the blanks” in laws that can be enforced through the criminal process; legislatures too often define offenses with inadequate mens rea or scienter (“guilty mind”) requirements; and legislatures too often increase penalties for existing crimes simply to make it look as though they have done something to reduce crime.[3]

Some claim that the critics of overcriminalization are making a mountain out of a molehill.[4] The criminal justice system has expanded its reach over time as new social and economic concerns justify new forms of regulation and new justifications emerge for using the criminal process to enforce different regulatory regimes. That expansion creates the possibility that certain individual prosecutions may be unjustified. If the number of instances of overuse or abuse of the criminal process is small, however, the problem may not be as large a concern as critics of overcriminalization claim.

At first blush, statistics seem to support the argument that critics of overcriminalization are overstating the extent of the problem. More than 90 percent of recent federal prosecutions were for crimes not subject to any overcriminalization criticism. The U.S. Sentencing Commission noted that in 2012, 32.2 percent of all federal criminal prosecutions were for immigration law violations, 30.2 percent were for controlled substance crimes, 10.5 percent were for fraud, 9.8 percent were for firearms violations, 3.5 percent were for non-fraud white-collar crimes, 2.4 percent were for child pornography offenses, and 1.7 percent were for larceny cases.[5] The “Other” category is just 9.7 percent and includes traditional crimes such as assaults on federal officials. The result, the argument concludes, is that there is little room left for an overreaching federal criminal justice system.

That argument, while facially reasonable, is unpersuasive.

The Only Party That Could Know the Full Extent of Overcriminalization—the U.S. Justice Department—Cannot Be Expected to Collect Examples of Its Own Unjust Prosecutions

The extent of the problem is difficult to determine and may be worse and more insidious than some might think. No agency in the legislative, executive, or judicial branches collects statistics about overcriminalization. Neither the U.S. Sentencing Commission nor the Federal Judicial Conference has the charter to identify all cases of unjust prosecutions, and the individual members of the federal bench lack the ability to collect such data on a nationwide basis.

The U.S. Department of Justice, of course, has no interest in identifying instances in which it or one of the U.S. Attorney’s Offices should not have brought criminal charges against someone. This is true for two simple reasons: (1) Many overzealous prosecutors might not acknowledge or even recognize instances of overcriminalization, and (2) even if they did, they might not highlight them because doing so would embarrass the Attorney General and individual U.S. Attorneys who had the authority to prevent any such prosecutions.[6]

Notable Examples of Injustices

There are several prominent examples of the misuse of the criminal justice system.

  • Abner Schoenwetter, for example, spent six years in a federal prison for importing Honduran lobsters that were packed in plastic—as opposed to cardboard—boxes and for supposedly violating a Honduran regulation (later declared invalid by the Honduran Attorney General) that made his lobsters marginally too small.
  • The federal government pursued a criminal investigation of the Gibson Guitar Company for importing wood for guitar frets that allegedly was exported illegally from India and Madagascar in violation of those nations’ laws—which, in the case of Madagascar, were not even written in English. In other words, the federal government claimed that Gibson Guitar was guilty of a federal crime in this country because it did not know the law of a foreign nation.
  • Lawrence Lewis, a building engineer, wound up charged with a felony and pleaded guilty to a misdemeanor for following the procedure he had been instructed to use to clean up toilet overflows at a military retirement home that, totally unbeknownst to him, wound up shunting the refuse into the Potomac River.[7]

Prosecutions such as these deprive the criminal law of the respect it needs to secure public support. That is particularly true if, as social science suggests, people generally follow the law if they respect it, not because they fear it.[8]

Each Injustice Matters

The argument that the concern with overcriminalization is overstated essentially reduces to claiming that because more than 90 percent of federal prosecutions are for classic federal crimes, overcriminalization is not a problem. These isolated instances of injustice, the argument goes, do not justify the commitment of time and effort necessary to fundamentally re-examine the criminal law:

There may be one or two extreme cases here and there where a prosecutor has exercised poor judgment and has charged someone who may have technically violated a regulatory law, but truly is morally blameless, utterly contrite, and completely harmless. A few mistakes here and there, however, do not justify tarring the entire criminal process or treating every police officer as a modern-day Inspector Javert.[9]

That defense of the status quo, however, is inconsistent with the long-standing axiom, drawn from the Bible,[10] that “It is better that ten guilty men go free than that one innocent man be convicted.”[11] As the Rev. Martin Luther King, Jr., wrote in his famous letter from the Birmingham jail, “Injustice anywhere is a threat to justice everywhere.” Society should not ignore known injustices just because they may be few in number. Rather, society should correct such errors, especially when their number is small, because we can no longer, and should not have to, rely on the clemency process to rectify them.[12]

Numerous Respected Individuals and Organizations Are Troubled by the Injustices of Overcriminalization

A large and growing number of highly respected figures believe that overcriminalization in fact is a serious problem. Former senior Justice Department officials have been vocal critics of overcriminalization.[13] An American Bar Association task force created to examine the issue released a report denouncing this phenomenon.[14] Numerous members of the academy have written about the problem.[15] Several law schools have held symposia to highlight the issue.[16] The media have expressed interest in the problem.[17] The House Judiciary Committee not only has held hearings on overcriminalization,[18] but also has chartered a task force to examine this matter.[19] Organizations from across the political spectrum—The Heritage Foundation and the ACLU, the Manhattan Institute and National Association of Criminal Defense Lawyers, the Texas Public Policy Foundation and Families Against Mandatory Minimums—that ordinarily do not hold the same public policy views all oppose overcriminalization.[20]

This widespread concern, voiced by important figures in the policymaking process representing very different viewpoints, justifies the belief that the problem is a systemic flaw in the criminal justice system and is not limited to isolated instances of legislative or prosecutorial overreaching.

Congress Should Act Now—Before the Federal Criminal Code Grows Even Further

The increasing use of criminal laws as regulatory penalties amplifies the risk that people, especially those who own or manage small businesses, may be deterred from pursuing legitimate activities due to the fear that they could commit a crime by unwittingly crossing one of the many obscure lines drawn by statutes, regulations, and ordinances. As Professor Douglas Husak has noted, among the harms caused by a large, prolix criminal code are “the freedom-limiting, anxiety-producing, and guilt-inducing effects the criminal law may have on those who take its demands seriously, even apart from the threat of punishment.”[21]

The criminal law serves a reasonable purpose when it deters individuals from approaching the line between lawful and illegal conduct—if the activity being regulated is inherently dangerous and the tort system cannot serve its traditional compensatory and deterrent functions.[22] Yet the criminal law often is used not as a necessary substitute for the tort system or as a means of enforcing traditional notions of blameworthy conduct, but as a means of protecting some favored interests over others.[23]

The public is ill-served when the criminal law is used to reduce competition rather than to promote it.[24] Cases where parties are deterred from socially beneficial activities will not show up in reported decisions discussing overcriminalization because, by definition, the affected parties will have avoided taking the risk of criminal prosecution. But it is precisely because the criminal law can have an overbroad deterrent effect that Congress should not wait until this problem worsens before remedying it.[25]

Conclusion

The only party with the ability to produce statistics on the prevalence of overcriminalization is the Justice Department, and, realistically speaking, it cannot be expected to collect accurate or complete statistics illustrating how often it has unjustifiably filed criminal charges. But the absence of proof is not proof of the absence of this problem. Numerous respected individuals and organizations, including several former high-level Justice Department officials, believe that overcriminalization is sufficiently widespread that it merits Congress’s attention and remediation. It also is clear that overcriminalization has occurred in particular cases because of flaws in criminal statutes.

Overcriminalization undeniably is a serious problem in every case in which it occurs. Congress should get to the bottom of this problem and adopt reasonable remedies to prevent injustices from reoccurring.—Paul J. Larkin, Jr., is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Yaniv Nahon and Morgan Bennett, members of the Young Leaders Program at The Heritage Foundation, provided valuable research assistance for this paper.

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Gibson Guitar Raid: Much to Fret About

Originally published at National Review by Pat Nolan

Federal prosecutors are proving themselves too highly strung.

With military precision, the federal officers surrounded the building, donned flak jackets and helmets, readied their weapons, burst in, and forced terrified employees out at gunpoint. Officers ransacked the facility, seizing computers, papers, and materials.  TOP ARTICLES4/5READ MOREDisney CEO Bob Iger Steps Down

It was the second raid in three years by the Fish and Wildlife Serviceon Gibson, maker of the famous Les Paul guitar. The situation would be laughable, if the consequences for Gibson weren’t so dire.

The law that Gibson allegedly violated is the Lacey Act, which bars importation of wildlife or plants if it breaks the laws of the country of origin. It was intended to stop poachers. The ebony and rosewood that Gibson imported was harvested legally, and the Indian government approved the shipment of the wood. But Fish and Wildlife bureaucrats claim that, because the wood was not finished by Indian workers, it broke Indian law. In other words, a U.S. agency is enforcing foreign labor laws that the foreign government doesn’t even think were violated.

#ad#“In two cases we had a SWAT team, treating us like drug guys, come in and shut us down with no notice,” lamented Gibson chairman and CEO Henry Juszkiewicz. “That’s just wrong. We’re a business. We’re making guitars.” Juszkiewicz says the raid, seizures, and resulting plant closure cost Gibson more than $1 million.

This abusive treatment of a legitimate business like Gibson is not an isolated incident. Small businesses have been similarly raided, and their officers imprisoned, for such minor offenses as importing lobster tails in plastic rather than cardboard (three men were given eight-year prison sentences) and sloppy labeling on imported orchids (the accused was given a 17-month sentence).

The Gibson assaults are further evidence that America’s criminal-justice system has strayed far from its central purpose: stopping the bad guys from harming us. SWAT-team raids were designed to arrest notoriously violent gangsters, and stop them from destroying evidence. Now, the police powers of the state are being used to attack businesses. (Were the feds afraid that the Gibson workers would flush the guitars down the toilet?)

It is time to get the criminal law back to basics. Fighting terrorism, drug cartels, rapists, and murderers is enough to keep law enforcement busy. To expand that fight to include such esoteric social causes as protecting Indian workers dilutes the resources needed to fight real crime. Why do we care who finishes the wood on guitars? And why are we applying the power of the state in its rawest form to enforce Indian labor laws?

Prosecutors who are looking for an easy “win” know that businesses roll over. A public raid on its offices, or an indictment of its officers, can destroy a business’s reputation and viability. That makes the owners easy to intimidate into a plea bargain.

If they choose to fight, they face the full wrath and fury of the feds. In the Gibson raids, the SWAT teams were deployed even though Gibson had offered its full cooperation to investigators. Such raids are increasingly used to intimidate citizens under suspicion. The orchid importer, a 65-year-old with Parkinson’s, was shoved against a wall by armed officers in flak jackets, frisked, and forced into a chair without explanation while his home was searched.

The government also attempts to get low-level employees to “finger” their bosses. For example, the feds threatened Gibson employees with long prison sentences. This is not a search for truth, but an immoral attempt at extortion to win convictions. Investigators examine the lives of “little fish” and use minor, unrelated violations (smoking a joint, or exaggerating income on a loan application) to pressure them to back the government’s case against their employers. Mobsters have experience with threats like this, but a secretary or an accountant is scared to death by the threat of prosecution.

A favorite ploy of prosecutors in these cases is to charge defendants with false statements based on their answers to the investigators. The sentence for this can be five years in prison. No recording is made of the interviews — in fact, the feds prohibit taping the interviews — and the agents are not stenographers. They cannot possibly recall the exact wording of the questions and the answers. Yet after the interview, they will produce a “transcript” replete with quotes throughout. And if a witness says he did not actually say what the agent put in quotes, it is the witness’s word against a fine, upstanding federal agent’s. Staring at a five-year sentence will get most people to say whatever the government wants them to.

The feds also pile up charges. According to Juszkiewicz, the Justice Department warned Gibson that each instance of shipping a guitar from its facility would bring an added charge of obstruction of justice. Prosecutors routinely add extra counts to stack potential prison sentences higher. For instance, faxing invoices for the wood would be charged as wire fraud. Depositing the check for the sale of the guitars would be money laundering. The CEO’s telling the press he is innocent would bring charges of fraud or stock manipulation. The intent is to threaten such long sentences that the targets plead guilty rather than risk decades in prison.

Prosecutors further tighten the screws by seizing the assets of the company, a tactic once used against pirates and drug lords but now routinely used to prosecute white-collar crimes. The federal agents seized six guitars and several pallets of ebony during their initial 2009 raid against Gibson. Federal law allows assets to be seized not just from convicted criminals, but also from those never charged. Owners must prove that the forfeited property was obtained legally; otherwise, the government can keep it. That gives the government incredible leverage, because without the seized inventory and bank accounts, the business will most likely go under. How can Gibson make guitars if the wood is being held by the government? How can it service customers when the government took its computers as evidence? How can it pay lawyers when its bank accounts were seized? Asset forfeitures bring to mind a similar twist on the law uttered by the Queen of Hearts in Alice in Wonderland: “Sentence first, verdict afterwards.”

America has become overcriminalized.The Gibson raids highlight how America’s criminal-justice system has become a Rube Goldberg contraption of laws and sentencing policies that have no consistent focus — and there is little relationship between the length of the prison sentence and the harm caused by a violation.

When the Constitution was adopted, there were three federal crimes: treason, piracy, and counterfeiting. Now, there are more federal crimes than we can count — literally. The Congressional Research Service tried to tally the number of crimes sprinkled throughout federal codes, but gave up at 4,450. That does not include more than 10,000 regulations that carry criminal penalties. It’s a wonder anyone can survive 24 hours without violating some obscure statute or rule.

And while Gibson has yet to be formally charged, why would the government choose to pursue the company under criminal laws, seeking to send the officers of the company to prison? The power to imprison is the one of the most severe authorities we cede to government. The lives of incarcerated people are not their own: They cannot choose where to live, with whom to associate, when to eat, or what to do with their time. Because it carries such harsh sanctions, criminal law has always been reserved for morally reprehensible acts such as murder, rape, arson, and robbery.

However, federal bureaucrats no longer feel constrained to limit criminal prosecutions to blameworthy actions that virtually everyone in society would agree are morally wrong. After all, in the age of moral relativism, who is to say what is moral or not? Instead, this moral basis of the law has been cast aside in favor of a broad authority to criminalize conduct that Congress (or, more likely, a mere handful of legislative staffers or agency bureaucrats) decides is “wrong.” Whereas behaviors were once criminal because they were inherently bad, modern law makes certain actions criminal merely because a majority of legislators think they should be prohibited, and criminal sanctions are imposed to make it clear the lawmakers really, really don’t like the conduct.

By unpinning criminal law from its moral roots, we now impose the harshest sentences on activities that are deemed improper by those with the loudest voices. Thus, the lobster fishermen who shipped their catch in the improper containers received longer sentences than some murderers. And Gibson is raided by federal commandos not because the company poses a threat to anyone, but merely because the American government has found it to be in violation of India’s labor laws.

This is government by whim, and these “whim” crimes are not based on evil intent. In fact, they require no intent at all. They are “strict liability” crimes — you don’t have to know you are acting unlawfully to be sent to prison.

#ad#The Heritage Foundation points out that “a core principle of the American system of justice is that no one should be subjected to criminal punishment for conduct that he did not know was illegal or otherwise wrongful.” These whim laws have discarded the centuries-old requirement of mens rea, or guilty intent. From today’s perspective, the old adage “ignorance of the law is no excuse” assumes that it is possible to know all the intricacies of tens of thousands of federal statutes and regulations. Nonetheless, if we inadvertently violate one of them, we face years in prison. We are modern Gullivers, tethered to the ground by the sinews of the criminal law.

Fortunately, many are fighting against this distressing trend. Groups as diverse as the Heritage Foundation, the American Civil Liberties Union, Prison Fellowship, the Cato Institute, and the National Association of Criminal Defense Lawyers have joined forces under the leadership of former Attorney General Ed Meese to fight the overcriminalization of America.

Meese is also active in Right on Crime, a group of leading conservatives working to apply free-market, conservative principles to the criminal-justice system. Some of the prominent conservative signatories of the Right on Crime Statement of Principles are Bill Bennett, Jeb Bush, Newt Gingrich, Asa Hutchinson, Chuck Colson, and Grover Norquist. We believe that “criminal law should be reserved for conduct that is either blameworthy or threatens public safety, not wielded to grow government and undermine economic freedom.” Congress needs to rein in runaway federal prosecutors who are threatening legitimate businesses. They can start by bringing DOJ officials before a public hearing to inquire into the raids, and ask some questions. What criteria does the DOJ use to send in a SWAT team when a subpoena would suffice? Why is it a priority of U.S. law enforcement to enforce Indian labor laws that India is not enforcing? Why doesn’t federal policy require that interviews be recorded?

Alexis de Tocqueville warned that the greatest danger to a democracy was “soft despotism”:

It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.

Congress needs to act quickly before the federal government compresses, enervates, extinguishes, and stupefies us. They need to bring our criminal laws back to basics: Get off the backs of businesses and keep us safe from truly dangerous and morally wrongful behavior.

— Pat Nolan is vice president of Prison Fellowship and director of its criminal-justice-reform division, Justice Fellowship.

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Heritage Report: Solutions for America: Overcriminalization

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

THE ISSUE:

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.

THE FACTS:

  • 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.

THE SOLUTIONS:

  • 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.