Overcriminalization
The Issue
Although the Constitution’s great structural principles of federalism and separation of powers are designed to guard against the abuse of governmental power and secure individual liberty, Congress routinely flouts these constitutional safeguards by enacting criminal laws that are vague, overly broad, or otherwise improper and unconstitutional.
“Overcriminalization” describes this trend in America—and particularly in Congress—to use criminal law to “solve” every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives. Criminal law is supposed to be used to redress only conduct that society thinks deserves the greatest punishment and moral sanction.
In recent years, federal criminal law has both exploded in size and scope and deteriorated in quality. Federal criminal law used to focus on inherently wrongful conduct: treason, murder, counterfeiting, and the like. Today, an unimaginably broad range of socially and economically beneficial conduct is criminalized. The number of criminal offenses in the U.S. Code increased from 3,000 in the early 1980s to 4,000 by 2000 to over 4,450 by 2008. And there is no letup in sight; rather, the pace appears to be constant or even accelerating.
Regrettably, current congressional approaches to federal criminal law have ignored the limitations outlined in our Constitution. In most cases, Congress never identifies what legislative power, if any, undergirds its exercise of criminal authority. When Congress does make the effort to cite a constitutional provision to justify criminal-law legislation, it most frequently cites the Constitution’s Commerce Clause, which grants Congress authority to “regulate Commerce…among the several States,” and routinely asserts that the criminal conduct covered by federal law has a constitutionally sufficient link to interstate commerce.
Not only has Congress enacted far too many federal criminal laws, but bureaucrats have followed suit. Scores of federal departments and agencies have created so many criminal offenses that the Congressional Research Service itself has admitted that it was unable even to count all of the offenses. The CRS’s best estimate? “Tens of thousands.” Not even Congress’s own experts have a clear understanding of the size or scope of federal criminalization.
In addition to their multitude, these criminal offenses are usually deeply flawed. Many federal criminal laws today make it possible for the government to convict a person even if he acted unknowingly or without criminal intent (mens rea). This means that honest, hard-working Americans doing their best to be respectable, law-abiding citizens can no longer be assured that they are safe from federal prosecutors. The Heritage Foundation and the National Association of Criminal Defense Lawyers reported the results of a joint study finding that in the 109th Congress, three out of every five 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 (including when its Members are not in session). All inherently wrongful conduct has been criminalized several times over, yet from 2000 through 2007, Congress enacted 452 new criminal offenses. 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
- Congress must justify all new criminalization. Because federal law has already criminalized 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 or penalty. The report should include a description of the problem each offense or 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.
- Congress’s carelessness should not endanger you. Federal law should codify the Rule of Lenity, thereby ensuring that the benefit of the doubt under vague, overbroad laws goes to the person being prosecuted, not to the government.
- Honest mistakes should not result in prison time. Every criminal conviction must require proof beyond a reasonable doubt that the person acted with criminal intent. Federal criminal laws should require such proof. The time when a person can be arrested and incarcerated for failing, for example, to affix a federally mandated sticker to an otherwise lawful UPS package must come to an end.
- Bureaucrats should not be making new crimes. Congress should not “delegate” its power to criminalize to unelected officials in the scores of federal departments and agencies that it has created. Both common sense and constitutional principles hold that the decision as to whether something is important enough to send a person to federal prison should be made by the American people’s elected representatives.
- Repeal unjust laws. Congress seems to have forgotten that it can repeal bad laws. It can and should do so. The worst, most unjust criminal offenses should be thrown into the legislative dumpster. Congress should start with offenses that allow Americans to be punished as criminals even if they did not know that they were doing something unlawful or otherwise wrongful and offenses that are vague, overbroad, or cannot be understood even by lawyers.
Facts & Figures
- The number of criminal offenses in the U.S. Code increased from 3,000 in the early 1980s to 4,000 by 2000 to over 4,450 by 2008.
- All inherently wrongful conduct has been criminalized several times over, yet from 2000 through 2007, Congress enacted 452 new criminal offenses.
Selected Additional Resources
- Brian W. Walsh and Benjamin P. Keane, “Overcriminalization and the Constitution,” Heritage Foundation Legal Memorandum No. 64, April 13, 2011.
- Brian W. Walsh and Tiffany M. Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, The Heritage Foundation and National Association of Criminal Defense Lawyers, April 2010.
