Overcriminalization



The Issue


The Framers of our Constitution were concerned that an expansive and voluminous criminal code was a threat to the liberty the nation had just won. The original federal criminal code was limited to what was necessary to get the new government started. The first federal criminal statutes outlawed approximately 30 crimes, and each one carefully supported the needs of the new enterprise. Today, Congress enacts criminal laws not to protect important national interests of a modern nation, but to score political points with an uninformed electorate that has been led to believe that outlawing more and more conduct or increasing the penalty for conduct that is already a crime somehow solves a crime problem.

“Overcriminalization,” which is the use and abuse of the criminal law instead of civil or administrative law to “solve” every societal problem and punish every mistake, is an unfortunate trend. The criminal law should be used to redress only blameworthy conduct, actions that truly deserve the greatest punishment and moral sanction.

Over the past 40 years, federal criminal law has exploded in size and scope while deteriorating in quality. Traditionally, federal criminal law focused on inherently wrongful conduct: treason, murder, bank robbery, theft, counterfeiting, and the like. Today, the federal criminal code reaches an unimaginably broad range of conduct. The number of criminal offenses in the U.S. Code increased from 3,000 in the early 1980s to 4,000 by 2000 and more than 4,450 by 2008. The pace appears to be constant or even accelerating, and that is just at the federal level.

Congress is not the only responsible party; agencies are also guilty. Federal agencies have promulgated hundreds of thousands of regulations that define crimes or contain potential criminal penalties for violations. Many of these regulations are vague or obscure, proving to be a trap for the unwary individuals who unwittingly end up committing acts that turn out to be crimes.

There are now so many statutes and regulations making conduct a crime that the Congressional Research Service, the U.S. Justice Department, and the American Bar Association cannot even count all of the offenses. If America’s experts do not have a clear understanding of the size or scope of federal criminalization, how can the average person be expected to know all of the criminal law?

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Many new criminal offenses also are deeply flawed. Many federal criminal laws make it possible for the government to convict someone even if he acted unknowingly or without criminal intent (that is, without what lawyers call a guilty mind, or mens rea). The unfortunate result is that people who do their best to remain law-abiding members of society can no longer be confident that they are safe from prosecution. The Heritage Foundation and the National Association of Criminal Defense Lawyers reported the results of a joint study finding that in the 109th Congress, 60 percent of new nonviolent, non-drug offenses lacked a criminal-intent requirement adequate to protect Americans who engaged in conduct that they did not know was illegal or otherwise wrongful from unjust criminal punishment.

Despite this rampant overcriminalization, Congress continues to criminalize at an average rate of one new crime for every week of every year. Practically all inherently wrongful conduct has been criminalized several times over, yet from 2000 through 2007, Congress enacted 452 new criminal offenses (which does not even count the innumerable crimes defined by agency regulation under delegations of authority from Congress). 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.


Recommendations


Ensure Congress Justifies All New Criminal Laws. Because federal law has already criminalized practically all inherently wrongful conduct many times over, Congress should be required to provide written analysis of and justification for every new or modified criminal offense and every new or enhanced penalty. The report should include a description of the problem that offense or more onerous penalty is intended to redress, any specific cases or concerns motivating the legislation, and a review of any overlap with existing federal and state law.

Do Not Let Congress’s Carelessness Endanger Individual Citizens. Federal law should codify the common law “Rule of Lenity,” the principle that the courts must interpret ambiguous or unclear statutes creating criminal offenses in favor of the defendant. That remedy would ensure that the person being prosecuted, not the government, receives the benefit of the doubt in every case involving a law that is vague or unclear.

Honest mistakes should not result in prison time. Every criminal conviction should require proof beyond a reasonable doubt that the person acted with criminal intent. Congress must end the risk that a person can be arrested, convicted, and punished, for example, for failing to affix a federally mandated sticker to an otherwise lawful UPS package. To prevent that outcome, Congress should not make regulatory conduct a crime unless a person has acted “willfully”—that is, intended to flout the law. Congress also should adopt a default mens rea bill which would insert a default mens rea standard into any criminal statute lacking a mens rea element unless Congress makes clear in the statute itself that the omission was intentional. Congress should also enact a mistake of law defense. Under that defense, if no reasonable person would have known that the charged conduct was a crime, a person could not be held criminally liable for it.

Do Not Empower Agencies to Define New Crimes. Congress should not delegate the power to establish crimes to unelected officials in federal departments and agencies. Common sense and limited-government principles demand that only elected Members of Congress make those decisions. Only the American people’s elected representatives should make the decision that particular conduct is sufficiently heinous that an offender should be labeled a criminal for committing it.

Repeal Unjust or Unnecessary Criminal Laws, starting with offenses that make it a crime to engage in conduct that no reasonable American would know is unlawful.


Facts and Figures


  • The number of criminal offenses in the U.S. Code increased from 3,000 in the early 1980s to 4,000 by 2000 and over 4,450 by 2008.
  • Today, it is estimated that nearly 5,000 federal statutes and over 300,000 regulations (nobody knows the exact number) contain potential criminal penalties for violations, and that is just at the federal level, with dozens more being proposed and implemented every year.
  • Practically all inherently wrongful conduct has been criminalized several times over, yet from 2000 through 2007, Congress enacted 452 new criminal offenses.

Selected Additional Resources


The Heritage Foundation, USA vs YOU: The Flood of Criminal Laws Threatening Your Liberty, co-published with the American Center for Law and Justice, American Civil Liberties Union, American Legislative Exchange Council, Families Against Mandatory Minimums, Justice Fellowship, National Association of Criminal Defense Lawyers, and Right on Crime, 2013.

Paul J. Larkin, Jr., “Accountability, Policies, and Tactics of Law Enforcement within the Department of the Interior and the U.S. Forest Service,” testimony before the Subcommittee on Oversight and Investigations, Committee on Natural Resources, U.S. House of Representatives July 28, 2015.

Paul J. Larkin, Jr., “The Injustice of Imposing Domestic Liability for a Violation of Foreign Law,” Heritage Foundation Legal Memorandum No. 94, June 12, 2013.

John G. Malcolm, “The Case for the Smarter Sentencing Act,” Heritage Foundation Commentary, July 28, 2014.

John G. Malcolm, “Criminal Justice Reform,” testimony before the Committee on Oversight and Government Reform, U.S. House of Representatives, July 15, 2015.

John G. Malcolm, “Criminal Law and the Administrative State: The Problem with Criminal Regulations,” Heritage Foundation Legal Memorandum No. 130, August 6, 2014.

John G. Malcolm, “Defining the Problem and Scope of Over-criminalization and Over-federalization,” testimony before the Over-criminalization Task Force of the Committee on the Judiciary, U.S. House of Representatives, June 14, 2013.

John G. Malcolm, “The Pressing Need for Mens Rea Reform,” Heritage Foundation Legal Memorandum No. 160, September 1, 2015.

Michael B. Mukasey and Paul J. Larkin, Jr., “The Perils of Overcriminalization,” Heritage Foundation Legal Memorandum No. 146, February 12, 2015.

Paul Rosenzweig, “Ignorance of the Law Is No Excuse, But It Is Reality,” Heritage Foundation Backgrounder No. 2812, June 17, 2013.

Stephen F. Smith, “A Judicial Cure for the Disease of Overcriminalization,” Heritage Foundation Legal Memorandum No. 135, August 21, 2014.

Brian W. Walsh and Tiffany M. Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, co-published by The Heritage Foundation and National Association of Criminal Defense Lawyers, April 2010.

Brian W. Walsh and Benjamin P. Keane, “Overcriminalization and the Constitution,” Heritage Foundation Legal Memorandum No. 64, April 13, 2011.