Other Protecting the Rule of Law Topics:

Overcriminalization



The Issue


The Framers of the Constitution were concerned that an expansive and voluminous criminal code would be a threat to the very liberty the nation had just won. The original federal criminal code outlawed approximately 30 crimes, and each statute carefully supported the needs of the new enterprise. More recent Congresses have enacted criminal laws not to protect important national interests of a modern nation, but to score political points with voters who are led to believe that outlawing more and more kinds of conduct, or increasing the penalty for conduct that is already a crime, somehow solves a crime problem.

“Overcriminalization”—the overuse and abuse of criminal law to address every societal problem and punish every mistake—is an unfortunate trend. The criminal law should be used only to redress 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. There are countless more criminal laws and regulations at the state and local levels.

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 previously non-existent violations. Many of these regulations are vague or obscure (it is, for instance, a federal crime to “allow” a pet to make any noise in a national park that scares a wild animal (36 CFR § 2.15 (4)), 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 various types of conduct a crime that the Congressional Research Service, the U.S. Justice Department, and the American Bar Association cannot even count them all. The official offenses are scattered throughout the U.S. Code making them difficult to identify. If America’s experts do not have a clear understanding of the specifics of federal criminal law, how can the average person be expected to know all of criminal law? Although that is impossible today, the ancient maxim that ignorance of the law does not excuse one of criminal liability still applies.

Many newly defined 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. 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 put an end to the fact 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.

Prior Congresses have enacted new crimes at an average rate of one newly created crime for every week of the year. Practically all inherently wrongful conduct has been criminalized several times over. Congress must halt its overcriminalization rampage and begin to eliminate vague, overly broad criminal offenses that punish people who violate one of the tens of thousands of federal criminal offenses without criminal intent or even knowing that these offenses exist.


Recommendations


Require Congress to Provide Written Analysis of, and Justification for, Each New or Modified Criminal Offense. 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 at least a description of the problem that the offense, or more onerous penalty, is intended to redress, any specific cases or concerns motivating the legislation, why civil or administrative remedies are inadequate, an analysis of the appropriate criminal intent standard, and a review of any overlap with existing federal and state law. The proposed Regulatory Reporting Act of 2015 (H.R. 4003, 114th Cong.), for example, would have mandated such reports.

Consolidate All Federal Criminal Laws into Title 18 of the U.S. Code. Although Title 18 is labeled “Crimes and Criminal Procedure,” federal criminal offenses are scattered throughout the statute books. Consolidation would beget much-needed identification and review of all federal criminal laws, and ultimately, better satisfy the constitutional requirement that the criminal law be accessible and knowable to all interested persons.

Adopt a Default Mens Rea Bill. A default mens rea (Latin for “guilty mind”) bill would insert a default criminal-intent standard into any criminal statute or regulation that lacks a mens rea element, unless Congress makes clear in the statute itself that the omission was intentional. That would mitigate legislative erosion of the criminal law’s ancient and fundamental presumption that only morally blameworthy persons should be convicted of a crime.

Enact a “Mistake of Law” Defense. The law maintains an ancient maxim, “ignorance of law excuses no one.” This maxim presumes that which is no longer possible: that the entirety of criminal law can be known by all. To safeguard against convicting an unwitting offender of an arcane rule, lawmakers could enact a “mistake of law” defense. This would exonerate a defendant who proves to a jury that he did not believe—and that any objectively reasonable person would not have believed—the charged conduct to be a crime.

Codify the Common-Law “Rule of Lenity.” The common-law “rule of lenity” is the principle that the courts must interpret ambiguous or unclear statutes creating criminal offenses in favor of the defendant. That ensures that the person being prosecuted, not the government, receives the benefit of the doubt in every case involving a vague law. This rule should be codified in law.

Do Not Authorize Agencies to Define New Crimes, and Limit the Number and Scope of Regulatory Offenses. Congress should not delegate the power to establish crimes to unelected officials in federal departments and agencies. Yet many federal statutes do empower agencies to write regulations that carry criminal penalties. 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. Congress should require the head of each federal agency to collect and submit all regulatory offenses it has promulgated for an up-or-down vote.

Repeal Unjust or Unnecessary Criminal Laws. The criminal code should only address conduct that truly deserves the label “criminal”—society’s most severe moral condemnation. Lawmakers should start with offenses that make it a crime to engage in conduct that no reasonable American would intuitively assume to be a crime, such as making unauthorized use of the “Smokey Bear” character (18 U.S. Code § 711 (2014)) or the 4-H club logo (18 U.S. Code § 707 (2014)), or to “allow … a pet to make a noise that … frightens wildlife on federal land” (36 CFR § 2.15(4)).


Facts and Figures


FACT: The criminal code should reflect common understandings of morality, rather than political opportunism (such as responding to crises to appease voters).

  • 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.
  • Between 2000 and 2007, Congress enacted 452 new criminal offenses (not including the innumerable crimes defined by agency regulation under delegations of authority from Congress).
  • Today, it is estimated that nearly 5,000 federal statutes and more than 300,000 regulations contain potential criminal penalties.
  • 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 that was adequate to protect Americans who engaged in conduct that they did not know was illegal or otherwise wrongful from unjust criminal punishment.

FACT: Virtually all inherently wrongful conduct has been criminalized several times over, so Congress should identify and amend or repeal redundant, superfluous, or outmoded criminal laws.

  • Congress has enacted dozens of statutes making it a crime to commit fraud—including bank fraud, bankruptcy fraud, computer fraud, health care fraud, marriage fraud, and tax fraud—even though the two basic statutes (criminalizing mail fraud and wire fraud) cover every crime of fraud that the federal government should bother to prosecute.
  • Congress has also enacted dozens of statutes making it a crime to tell a false statement (regarding particularities such as reports required under the Protection of Horses Act, for the loss of commercial fishing vessels, and for fluid milk products) even though the general false statements act (the False Claims Act—18 U.S. Code § 1001(a)), is broad enough to include any fib that the federal government should bother to prosecute.

Selected Additional Resources


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.

Paul J. Larkin Jr., “The Need for a Mistake of Law Defense as a Response to Overcriminalization,” Heritage Foundation Legal Memorandum No. 91, April 11, 2013.

Paul J. Larkin Jr., “Public Choice Theory and Overcriminalization,” Harvard Journal of Law & Public Policy, Vol. 36, No. 2 (2013).

Paul J. Larkin Jr., and John-Michael Seibler, “Time to Prune the Tree: The Need to Repeal Unnecessary Criminal Laws,” Heritage Foundation Legal Memorandum No. 173, February 25, 2016.

Paul J. Larkin Jr., and John-Michael Seibler, “Time to Prune the Tree, Part 2: The Need to Reassess the Federal Fraud Laws,” Heritage Foundation Legal Memorandum No. 185, October 19, 2016.

Paul J. Larkin Jr., David Rosenthal, and John-Michael Seibler, “Time to Prune the Tree, Part 3: The Need to Reassess the Federal False Statements Laws,” Heritage Foundation Legal Memorandum No. 196, December 15, 2016.

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 Overcriminalization and Overfederalization,” 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.

Edwin Meese III, “Principles for Revising the Criminal Code,” testimony before the Subcommittee on Crime, Terrorism and Homeland Security, Judiciary Committee, U.S. House of Representatives, December 13, 2011.

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

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