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A Primer on Overcriminalization

The original federal criminal code punished about 30 crimes. By the 1980s, that code punished more than 3,000 crimes. The exact number of federal crimes on the books today is unknown, but studies estimate there are currently over 5,000 crimes in the federal criminal code and over 300,000 regulations that carry federal criminal penalties.

In its 2019 session, Congress introduced 154 bills that would have added new criminal penalties to the federal code.

“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,” said in an online article.

Overcriminalization is not just a federal phenomenon, it’s also prevalent within state legislatures. Since World War II, the North Carolina legislature has added five sections to its criminal code each year; it has added 318 new crimes since 2009. Arizona has over 4,000 statutory offenses that can lead to a criminal conviction. In 1960, Florida statutes comprised two volumes. It now takes five volumes to cover Florida’s laws. While at least one volume covers the criminal code, other volumes contain criminal or regulatory offenses that can result in criminal penalties.

“Even the most intelligent and skilled attorney cannot know all that is contained in the four million pages that make up the federal code,” states an article on “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.”

A basic principle of criminal law is that every crime contains an element of mens rea, or criminal intent, to find someone guilty. Historically, criminal laws have required negligence, recklessness, knowledge, intent, or willfulness to be present to form criminal intent. Many state and federal laws have dispensed with that principle.

Some regulations are vague or obscure. Take for instance 36 Code of Federal Regulations Section 2.15(4), which makes it a federal crime to “allow” a pet to make any noise in a national park that scares a wild animal. Another section provides it is a criminal offense to fail to affix a federally mandated sticker on an otherwise legal UPS package.

Arbitrary or abusive prosecution practices were on full display in the criminal proceedings against fisherman John Yates. He was charged with a federal felony for violating the “anti-document-shredding” provision of the Sarbanes-Oxley Act. Yates’ alleged crime was based on his throwing three of the approximately 3,000 fish he caught that day back into the ocean because he knew they were undersized according to federal law.

While Yates’ conviction was ultimately reversed by the U.S. Supreme Court (“SCOTUS”), his case illuminates the power given to prosecutors in the age of overcriminalization. Prosecutor are given full latitude in deciding when to bring charges and what charge will be lodged. This often results in prosecutors alleging crimes that carry increased penalties, so they can gain leverage during plea negotiations. [See CLN, April 12, 2019, p. 1] Other examples of overcriminalization include the case of a river guide being charged with “obstructing government operations” after he dove into the water to save a child rather than waiting for a search and rescue team to arrive. Members of a Christian ministry who offered food to homeless people in a Fort Lauderdale, Florida, park were charged with violating a local ordinance against such food sharing in city parks. That ordinance’s aim was to discourage homeless people from living or congregating in city parks.

SCOTUS in 2015 highlighted the problem with eliminating mens rea as an element to convict. It said the fact that 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.” Yet the Court failed to establish a default mens rea standard.

‘Taxpayer Burden’

There are many impacts of overcriminalization. For individuals like Yates, there is the stress and financial burden of fighting the prosecution. “Our nation’s addiction to criminalization backlogs our judiciary, overflows our prisons, and forces individuals to plead guilty not because they actually are, but because exercising their constitutional right to trial is prohibitively expensive and too much of a risk,” says the National Association of Criminal Defense Lawyers. “This inefficient and ineffective system is, of course, a tremendous taxpayer burden.”

Overcriminalization has an impact that goes well beyond a conviction. The Council of State Governments Justice Center reports that a criminal record can erect 44,000 legal barriers to a successful life. Social and legal consequences of a criminal conviction impact or limit, for instance, housing opportunities, employment, and educational grants. The inability to receive a true second chance results in higher recidivism rates for returning citizens and negatively impacts public safety and the economy.

The phenomenon of overcriminalization has not gone unnoticed, and there is a movement afoot to remedy the situation. Minnesota removed 1,175 obsolete, unnecessary, or unreasonable laws from it various legal codes in 2014. Ohio and North Carolina began a systematic process called criminal code recodification to reduce overcriminalization. Michigan followed Ohio’s lead in 2015 by imposing a default mens rea standard of recklessness on all elements of existing criminal justice laws that lacked such a standard.

Congress also took action in 2015 by adopting rule changes in the U.S. House of Representatives. That change affords the House Judiciary Committee the opportunity to exercise its jurisdiction over any bill that proposes or modifies anew or existing criminal law or penalty.

The most recent strike against overcriminalization was made in the final days of the Trump presidency. The “Executive Order on Protecting Americans from Overcriminalization Through Regulatory Law & Justice” was signed by President Donald J. Trump on January 18, 2021.

Its purpose “is to alleviate regulatory burdens by Americans by ensuring that they have notice of potential criminal liability for violations of regulations and by focusing criminal enforcement of regulatory offenses on the most culpable individuals.”

The order makes it the policy of the federal government to assure regulations are “explicit about what conduct is subject to criminal penalties and the mens rea standard applicable to those offenses.” Where an offense is based on strict liability, agencies should consider civil rather than criminal penalties. The new policy mandates that where a criminal prosecution is based on regulatory offenses, it must be proven that citizens had “actual or constructive knowledge” about “what is prohibited or required by the regulation and choose not to comply, thereby causing or risking substantial public harm.”

The order requires transparency about regulations that carry criminal penalties. Such regulations must contain a mens rea element or identify it as a strict liability offense that cite the “relevant provisions of the authorizing statute.”

The order also requires federal agencies to consult with the Department of Justice within 45 days of the order’s issuance and publish in the Federal Register the respective agency’s “plan to administratively address regulatory offenses subject to potential criminal liability rather than refer those offenses to the Department of Justice for criminal enforcement.” A list of factors for agencies to consider is provided.

The order enacts reforms that scholars at The Heritage Foundation have been urging for years. While the order does not go as far as those scholars advocated for, it is hailed as a victory against the phenomenon of overcriminalization.

Executive orders, however, can be undone by future administrations. To ensure the change is permanent, Congress must act. President Joe Biden said during his campaign that many of the “tough on crime” penalties in his criminal justice bill in 1994 needed to be toned down. Criminal justice reform advocates are waiting to see if that was just campaign rhetoric or if it will be part of the Biden Administration’s policy goals. 


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