The Criminalization of Everything

Originally published at Charles Koch Institute by Jeremiah Mosteller
The average American unknowingly commits three or more federal crimes a day. Are there just too many laws?

Originally published at Charles Koch Institute by Jeremiah Mosteller

The average American unknowingly commits three or more federal crimes a day. Are there just too many laws?

Examples of Overcriminalization

A river guide was charged with “obstructing government operations” when he dove into the water to save a child instead of waiting for a search and rescue team to arrive. When a Christian outreach group offered food to homeless people in a Fort Lauderdale park, its members were arrested because a local regulation disallowed such food sharing. Thinking of advertising your business hours in Eastern Standard Time? You could be arrested and charged in at least one place in the United States.

Though they may seem ridiculous, these so-called crimes offer a window into a serious problem called overcriminalization, a side effect of making criminal law a one-size-fits-all solution for society’s problems. Our system of laws has become so big and confusing, it can turn ordinary citizens into accidental criminals.

Definition of Overcriminalization

Overcriminalization is the overuse or misuse of criminal law to address societal problems that could be remedied more effectively though the civil legal system or other institutions. It’s an issue that has mushroomed over time, as crime after crime is added to our criminal codes.

History of Overcriminalization in America

When it was enacted in 1790, the federal criminal code included just 30 crimes, but by the 1980s, the number had exploded to more than 3,000. The number of crimes in federal law and regulations today is unknown. The Department of Justice has failed many times to catalog this list, but studies estimate that there are 5,000 statutes and 300,000 regulations that carry federal criminal penalties. In the session ending in 2019, Congress introduced 154 bills that would have added new criminal penalties to the federal code. While this is a reduction from recent years, new federal crimes continue to be a significant contributor to overcriminalization.

The problem is by no means restricted to the federal government. Thousands of statutes, regulations, and local ordinances carry criminal penalties in each state. Arizona has over 4,000 statutory offenses that can result in a criminal conviction. North Carolina has added five sections to its criminal code each year since World War II, and its legislature has added 318 new crimes since 2009 alone. These numbers are compounded by the fact that our state legal systems are a patchwork of laws, where even crimes with the same name require a variety of different statutory elements across state borders.

The Accidental Criminal

The existence of so many criminal acts would reasonably lead to the assumption that there must be a defense for an individual who innocently breaks an obscure law not knowing that the conduct is illegal. In law school, every future attorney is taught that the criminal law requires an element of mens rea or criminal intent to find someone guilty. Throughout history, criminal statutes have required some form of criminal intent such as negligence, recklessness, knowledge, intent, or willfulness.

Many recent criminal statutes implemented at both the federal and state level lack mens rea standards or have unclear standards that frequently apply to conduct a reasonable person would not assume is wrong or illegal. In 2015, the Supreme Court highlighted this problem, stating that the fact a “statute does not specify any required mental state” does not dispense with the fact that criminal intent is “necessary to separate wrongful conduct from otherwise innocent conduct.” Unfortunately, the Court failed to provide a default mens rea standard so these statutes remain ambiguous.

The Consequences of Overcriminalization

The overwhelming number of criminal laws and lack of criminal intent requirements in many statutes presents a constitutional hazard given the requirement that citizens have “fair warning” of conduct that the government “commands or forbids.” Even the most intelligent and skilled attorney cannot know all that is contained in the four million pages that make up the federal criminal code. A system of law that cannot be known or understood has the potential to make accidental criminals out of ordinary citizens and represents a foundational threat to the legitimacy of our criminal laws.

The story of fisherman John Yates presents a second concern commonly raised about overcriminalization: arbitrary or abusive prosecution. Prosecutors brought charges against Yates and secured a felony conviction for a violation of the “anti-document-shredding” provision of the Sarbanes-Oxley Act. What did Mr. Yates do to deserve time in a federal prison? He threw three of the approximately 3,000 fish he caught that day back into the ocean because he knew they were undersized according to federal regulations, in effect destroying evidence. While the Supreme Court overturned his conviction eight years later, not everyone facing a similar situation has the chance to have the Supreme Court hear their case.

Bearing the stress and the cost of defending yourself in a case like Yates’s is just one danger of laws gone wild. Here’s another: Overcriminalization provides prosecutors with high levels of discretion to choose when to bring criminal charges for conduct that should not be considered criminal in the first place. And it provides unethical prosecutors with the opportunity to overcharge defendants for wrongful conduct as leverage to force a guilty plea.

The impact of overcriminalization extends far beyond a conviction. A criminal record doesn’t just invite societal stigma; the Council of State Governments Justice Center reports that such a record can erect an astonishing 44,000 legal barriers to a successful life. Combined, the social and legal consequences of being convicted of a crime can severely limit access to housing, employment, educational grants, and more things necessary to be a contributing member of a local community. This continuing punishment denies people a true second chance and has a negative impact on public safety and the economy. By imposing criminal penalties for such a broad range of conduct, we impose barriers to well-being for conduct that could more effectively be handled outside the criminal justice system.

Overcriminalization Reform

Our criminal law is not intended to punish every type of conduct that isn’t beneficial to society. Steps should be taken at both the federal and state level to identify and reduce the number of duplicative, unnecessary, and unjust statutes carrying criminal penalties. While many statues were adopted by well-intentioned lawmakers seeking to solve perceived or actual problems, they were often drafted in a sweeping manner resulting in the criminalization of victimless acts that cause no harm to local communities or public safety.

In 2014, Minnesota did what was previously thought to be impossible. The state removed 1,175 obsolete, unnecessary, or unreasonable laws from the state’s various legal codes. These included a prohibition against carrying fruit in an improperly sized container or driving a car in neutral as well as more serious items such as removing a duplicate of the state’s criminal negligence statute that was never actually utilized by prosecutors.

Other states are undertaking similar efforts to remove unnecessary or duplicative statutes and regulations. In recent years, Ohio and North Carolina have both begun to reduce overcriminalization through a systematic process called criminal code recodification.

Recodification attempts to locate every criminal penalty imposed by state law, resulting in a revision and reduction of a state’s criminal codes and other statutes carrying criminal penalties. One example of statutes that could be consolidated in North Carolina’s code are the dozens of larceny (a form of theft) statutes that apply to different types of property. Recodifying a state’s criminal laws can help citizens, police, and prosecutors alike more clearly understand the scope of criminal liability for certain conduct under state law.

A Matter of Intent

The punishment imposed for criminal conduct should match the offense committed and the harm caused. In order to ensure proportionality of punishment, criminal laws should distinguish between intentional acts, reckless acts, and simple accidents. Each criminal statute should carry a clearly articulated standard of intent that prosecutors must prove to acquire a conviction. A default standard should exist in law for judges to utilize in criminal cases where the intent standard of a statute is missing or ambiguous.

While Congress has failed multiple times to pass mens rea reform, two states have succeeded. Ohio adopted the nation’s first comprehensive mens rea reform in 2014, with legislation requiring that every new criminal offense enacted by the legislature include a criminal intent standard or be considered void. The new law also imposed a default mens rea standard of recklessness on all elements of existing criminal statutes that lacked such a standard. Michigan followed Ohio’s lead in 2015 by adopting similar reforms. Today, thirteen other states have some form of default criminal intent standards in their state statutes.

These are signs of hope, but there is much work to be done. Otherwise, hosting a bingo game that lasts more than five hours just might get you into big trouble.

Jeremiah Mosteller, Policy Liaison, Criminal Justice