The Framers of our Constitution were concerned that an expansive and voluminous criminal code was a threat to the liberty they 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 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?
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.
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