Originally published at Manhattan-Institute by Rafael A. Mangual | January 1, 2019
The passage of the First Step Act — the criminal-justice and prison-reform bill championed by President Trump — was a rare bipartisan triumph in this age of deep polarization.
But the bill left much unaddressed and was missing another reform that conservatives have long pressed for: namely, stopping the explosion in the number of federal crimes, well beyond what the average citizen should be expected to know or abide by.
Call that the Next Step.
Given the bipartisan cooperation behind First Step, congressional Republicans should now nudge their Democratic colleagues to address the serious issue of federal overcriminalization.
That means addressing four main problems.
First, as already mentioned, there is the sheer number of federal criminal prohibitions on the books. Though no one can say for sure just how many federal crimes exist, estimates put the number at more than 300,000, a ridiculous number of crimes for Americans to be versed in.
These include prohibitions on selling “spaghetti sauce with meat” that contains less than 6 percent meat, driving on the beach at the Cape Cod National Seashore without a shovel in the vehicle and walking a dog on a leash longer than six feet on federal property.
Second, a majority of federal crimes lack meaningful intent requirements, bucking centuries of legal tradition requiring that prosecutors establish mens rea (that the defendant acted with a guilty mind) to secure a conviction.
This lack of intent requirements is especially troubling considering the fact that thousands upon thousands of federal statutes could result in a felony conviction if violated.
Third, many federal crimes are, counterintuitively, codified outside the federal criminal code (Title 18). Instead, they are sprinkled throughout the many thousands of pages of federal statutes and regulations.
Finally, less than 2 percent of federal criminal law — about 5,000 of the more than 300,000 crimes — are statutes passed by both houses of Congress and signed into law by the president. Instead, the overwhelming majority are criminally enforceable regulations created by politically unaccountable bureaucrats.
This last problem is best understood as “criminalization without representation.” It is a direct threat to individual liberty and a hindrance to a well-functioning market economy.
Collectively, these problems have created a body of criminal law that is far too large and disorganized for anyone to read, let alone internalize. Coupled with the erosion of criminal-intent standards, this means that each of us by some estimates commits, on average, three federal felonies a day.
In addition to significantly raising the cost of legal compliance, which in turn raises the cost of doing business, overcriminalization tramples on core American principles of representation, fair notice and due process.
So what should the “next step” look like?
First, it should include a default criminal intent standard that would apply to any federal crime that doesn’t explicitly state whether, and to what extent, a showing of intent is a prerequisite for conviction.
This was part of an earlier bipartisan package of reforms scuttled at the last minute by the Obama administration and opposed by left-wing groups, though many of these same outfits loudly backed the First Step Act.
Second, the next reform should restore political accountability to the process of crime creation by restricting to civil enforcement all rules that haven’t passed both houses of Congress through the process most of us have been familiar with since childhood, thanks to “Schoolhouse Rock.”
Enacting such reforms to reduce federal overcriminalization would require Democrats to reciprocate the support they recently received from Republicans for First Step. Given the midterm-election results, that may be a tall order. Yet it should be made a priority not merely as a show of bipartisanship, but because, as the president said of the First Step Act, it’s “the right thing to do.”
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Rafael A. Mangual is a fellow and deputy director for legal policy at the Manhattan Institute. Follow him on Twitter here.