The current Congress appears capable of handling only a single major issue at a time — this month it’s been the national debt ceiling. As a result, other important matters fester without resolution. Unfortunately, one of these topics — overcriminalization — may not be one either the Congress or the administration has any interest in tackling. They should; failure to address the overcriminalization of America is turning us into a society in which the average citizen is at the mercy of the federal government for fear of running afoul of some criminal law or regulation on any given day, despite having no intention whatsover of doing so.
The explosive growth in the number of federal crimes in recent decades has been nothing short of phenomenal. Three crimes — three — were considered of sufficient importance and of a unique federal nature, to be included specifically in the Constitution. Those three uniquely federal crimes are treason, piracy and counterfeiting. Over the decades, of course, other crimes were added, usually pegged to the infamous “commerce clause.” By 1980, the federal criminal code had mushroomed to about 3,000 separate criminal offenses. What has happened since 1980, however, has been nothing short of phenomenal — the list of federal criminal offenses has exploded to nearly 4,500 offenses; as noted most recently by Gary Fields and John Emshwiller in the Wall Street Journal. This figure does not even include the many more thousands of federal regulations that can be enforced by the government as criminal offenses.
Moreover, as noted in former Attorney General Ed Meese’s introduction to the 2010 book, One Nation Under Arrest, by Paul Rosenzweig and Brian Walsh at the Heritage Foundation, an ever-increasing number of federal crimes, including many passed legislatively by the Congress, do not require the government to prove the defendant possessed either “criminal intent or a guilty mind.” This means that so long as a federal prosecutor can prove a person committed a prohibited act — even if they had no knowledge whatsoever that what they were doing was criminal, and they never intended to violate any federal law — the person can be found guilty, be sent to jail, and be forever handicapped with a criminal record.
This creates the situation in which, again as Ed Meese notes, “everyone is potentially a criminal” and the government can decide on its whim who to charge and which citizens “go to jail and who goes free.” Thus, you have the situation in which, as noted in the piece appearing in the Wall Street Journal by Fields and Emshwiller, former Indianapolis race-car legend, Bobby Unser, becomes lost while driving a snowmobile and accidentally drives onto “federal land,” thereby technically violating the Wilderness Act. He has a federal criminal record as the result of this 1996 incident.
Because another federal law, known as the “Lacey Act,” makes it a federal felony to import into the U.S. any fish or wildlife if doing so breaks another country’s laws, U.S. citizens find themselve with federal felony convictions because they might have brought an under-sized lobster into the U.S. simply because the laws of Honduras make it a crime to sell small lobsters. To emphasize just how absurd such prosecutions have become — Fields and Emshwiller document a case in which a small businessman was convicted of just such an offense, even though the Honduran courts had previously invalidated the small-lobster law.
The list of such unfair and outrageous instances of abusive federal prosecutions is depressingly long; with many the result of the explosive growth of “environmental crimes” since the birth of the EPA four decades ago. Yet Congress after Congress continues to add crime after crime to the burgeoning federal criminal code, based often on pressure from interest groups and federal agencies themselves.
How far will this pell mell rush to become “One Nation Under Arrest” go before someone — the Congress, a president, the Supreme Court — steps in and puts on the brakes? The overcriminalization of America has progressed way too far already. Yes, it is important to get a handle on federal overspending and the national debt; but if everyone’s in jail, there’s not a lot we can do about tackling these other problems.
By Bob Barr — The Barr Code