Everyone’s a criminal in Uncle Sam’s eyes

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

97 comments Add your comment

Bud Wiser

July 29th, 2011
5:23 am

First.

Everyone is a criminal except for those con men and women we call Congress.

But, the DOJ as well is led by a man whose stench of knowledge and participation in the Mexican guns-for-drug-dealers program is as clear and foul as anything has ever been since the days of RFK.

Karl Marx

July 29th, 2011
6:22 am

It’s our fault. We pay them to make (write) laws. What we should do is pay them to abolish laws. The rule should be if you write a law and it is passed a deduction is made from their paycheck but if you get a law abolished you receive a bonus.

James

July 29th, 2011
7:00 am

Bob, I was surprised that you did not mention in today’s blog the latest invasion of privacy that congress is considering. The “Protecting Children from Internet Pornographers Act of 2011″ masks under the guise of protecting our children yet another invasion of privacy, at the urging of the national police unions and justice department. It makes ISPs save all of your data for 18 months, including name, address, everything you’ve accessed, all of your rotating IP addresses, and make them available, not only for law enforcement but possibly for lawyers. It literally creates, in the words of Zoe Lofgren “a data bank of every digital act by every American”.

Big Tent

July 29th, 2011
8:12 am

Bob wrote this entire piece to get to “one nation under arrest”. There ought 2B a law……

JV

July 29th, 2011
8:38 am

“The keystone of the Fascist doctrine is its conception of the State, of its essence, its functions, and its aims. For Fascism the State is absolute, individuals and groups relative.” – Benito Mussolini

Aquagirl

July 29th, 2011
8:41 am

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?

…sez the guy who was DRIVING the damn car with his foot on the floorboard.

Now that he has no power, Mr. Barr demands others don’t act as stupidly and viciously as he did. Thanks for your great contribution to freedom, Bob.

caslosgvv

July 29th, 2011
8:41 am

Unfortunately, something that is criminal and unlawful, illegal entry into this country, has been handled by greed driven lawmakers, willing to look the other way while millions of illegals flood in. The mindset of people willing to make more and more laws yet unwilling to enforce laws already on the books shows just how much trouble our country is in.

Captain America, Where Are You?

July 29th, 2011
8:41 am

On September 11, 2001, the United States of America and all the rights of its citizenry, were successfully murdered by Obama bin Laden.

The Taliban Won. We Lost.

America.

Tim Ryles, Ph.D.

July 29th, 2011
8:44 am

Bob, see also Harvey Silverglate’s, Three Felonies A Day. Under current federal law, the U.S. Attorney in Philadelphia could have brought a RICO action against the ignore of the Constitution. ate you following the Alabama Bingo trial in Montgomery? The Siegelman case? Seems to me that these actions go a long way toward criminalizing politics. That C word (compromise is rapidly becoming synonymous with Criminal along with the right to petition the government for a redress of grievances. Give us more on this issue.

GT

July 29th, 2011
9:00 am

A voice of reason. All this and the cost of taking the nation to prison is off the charts too. Not only the federal prisons but the law enforcement that goes with it. The sad thing is the this cancer to our society will not be cured because of the lack of merit but because someone will look at the bill and finally come to a sober conclusion that this is not getting the bang for the buck. The economics will kill it long before the morality. You take some of these laws away and people would actually have to be responsible for their own actions. When a Madoff told you he is making huge returns you might demand to know how as opposed to blindly throwing your money away. Society like a safe neighborhood works better when the citizens are watching out for each other instead of a clueless government that has a political agenda.

Joe the Plutocrat

July 29th, 2011
9:10 am

Karl Marx, you’re wrong. WE don’t “pay them to make (write) laws”. lobbyists pay them to write laws. special interests are special interests and the the tiny portion of the government NOT owned by big oil, big pharm, big insurance, big ag, big bank, etc., has interests of its own (controlling and exploiting the unwashed masses). PLUS, since 1980 another “big” has entered the mix; big prison; or what I call the judicial-penal complex. in addition to the political control offered by excessive laws; said laws create a steady revenue stream for the public and private enterprises in the prison contstruction and incarceration market. how we gonna keep our for-profit prisons full if we don’t have enough “criminals”? geez, you are a socialist!

Free American

July 29th, 2011
9:17 am

To add insult to injury, most of these laws are enacted by the state NOT to protect the citizen, but to protect the state from the citizen———————————

“When you see that in order to produce, you need to obtain permission from men who produce nothing; when you see that money is flowing to those who deal not in goods, but in favors; when you see that men get rich more easily by graft than by work, and your laws no longer protect you against them, but protect them against you. . . you may know that your society is doomed.”

Karl Marx

July 29th, 2011
9:26 am

Geez Joe even we, the taxpayers, are also “Special Interest”. Besides just who does “Big” business serve? Why stockholders, the people who own the company or at least that how the Captilist system is suposed to work isn’t it? Now get real, the truth is we are all “Socialist” . Face it if you believe in Social Securty, Medicare, and antitrust laws you are a socialist. Anyway no points for you but thanks for playing.

Chuck

July 29th, 2011
9:28 am

Joe, I completely agree that lobbyists now have a greater influence on the laws that are created than the constituents. And good luck getting any criminal laws overturned due to all of the bureaucrats that would be out of a job. Take illegal drug consumption (not distribution) that virtually causes no harm except for the user. However, prosecuting a user creates jobs for police men, lawyers, prosecutors, judges, clerks, prison guards, probation officers, testing facilities, and treatment professionals. All of these groups have a vested interest in keeping substances illegal. Crimes should not be legislated for the sole benefit of employing people to prosecute offenders. Drug use is just an example but there are many actions that are kept illegal for the wrong reasons – collection money from offenders.

Karl Marx

July 29th, 2011
9:31 am

Hey free American, Don’t forget about “Sovereign immunity”. Talk about protecting the state from it’s citizens. BTW it’s call “Crown Immunity” in the UK. Basically it means the King can do no wrong.

Michael

July 29th, 2011
9:45 am

I know it’s a messy subject, but these “thought” crimes dealing with trying to hook up with a 12 year old at a hotel have got to go. Or the guy convicted under state law for pretending he knew where the missing teacher from south Georgia was located. And “cyberbullying” — we’re kidding, right?

Jerk

July 29th, 2011
9:46 am

LOL this aquagirl always cracks me up with her inane comments on everything. Is there anyone out there that you can get behind, or do you just whine and complain about what others feel strongly about?

Joe the Plutocrat

July 29th, 2011
9:47 am

Karl, I cannot tell if I agree or disagree with you. Irony and sarcasm can be hard to ID on a blog (which is why we have the “thought police”). Citizen do not have “special” interests; we have “interests” (some might say; “life, liberty, and the pursuit of happiness…”). At the end of the day, it’s a rigged game, and while We fund the players, we don’t share in the winnings. I agree “we’re all socialist”. In addition to Social Security and Medicare/Medicaid; you can add the DoD. Is there a more ‘collectivist’ organization than the Army? And why is this? becaise we’re social creatures. We favor the security of the herd. It starts with families and clans, which lead to cultures (religious dogma, economic distinctions, etc.). The gub-ment is merely a very large family, and as such, it must be “led” by someone. I would argue that We the People have willingly deferred to a plutocracy, which I find interesting, as our forefathers formed this republic because they didn’t like being beholden to a monarchy. It’s all about balance, and sadly enough greed trumps balance every time, and twice on Sundays.

GT

July 29th, 2011
9:48 am

We need to protect ourselves and stop blaming the government for every micro moment. We set the government up with our fears and expectations and then cry when the thing gets too big. We are the cause of our problems not government. Most of the people who think they have a group answer to an individual problem are nuts.

I can guarantee you the next hijacker on an airplane is not getting to its target. Not because of the expensive and useless homeland security but because the public now realizes the last line of defense is themselves. All three of those planes would have ended up in a field or there would have been some dead hijackers on Sept. 11 if the passagers had know it was up to them to save America, that their government was helpless. The government particularly Republicans have got to stop selling themselves as the saviors of this nation. We are losing a drug war, hell we trading with communist Viet Nam, what was that all about, but not Cuba. What has being in Iraq earned us. We are told what to fear and we leave that selection up to opportunist. 9/11 was a great opportunity to right the wrong in this country ,to come together as a nation, but, instead, we found a way to interpret that as the Republicans will save the country. It got an unelectable Bush a second term and the country in deep debt and fear.

Joe the Plutocrat

July 29th, 2011
9:55 am

GT, I think you might benefit from some therapy. At the very least, rent a copy of “Good Will Hunting” and repeat the mantra; “…it’s not your fault…” (you were abused by your father). Do you really think “We are the cause of our problems”? Are you serious? JOKE WARNING: We all know, homosexuals, academics, liberals, Muslims and illegal immigrants are the cause of our problems; but I digress. Oh, and you got the first part backwards; the government (plutocracy) sets us up with “fear”. Think about this tactic the next time you get blasted with gamma rays at the airport, or a TSA flunky gropes your grandmother. The government “got too big” because it it only interested in its own power and control.

BillyRob

July 29th, 2011
9:58 am

He who you would control, you must first make guilty.

LawDog

July 29th, 2011
10:01 am

I generally agree with Bob Barr and I agree with the thesis of this article, but there is one glaring inaccuracy:

“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 ”

To be fair, when intent is an element of a crime, it never means the intent to do something criminal or the intent to violate a law. Lack of knowledge that something is criminal is never a defense. These strict liability crimes (usual involving some regulatory violation) mean that you do not have to have the intent to obtain, possess, ship, etc. something contrary to law, not that you intended the law.

Disclaimer: not intended to be legal advice of any kind.

LawDog

July 29th, 2011
10:01 am

*usually

*intended to break the law

Madison

July 29th, 2011
10:13 am

More laws keep on being passed because the Federal prosecutors sometimes find it hard to prosecute certain cases under the few available laws may be their knowledge of Jurisprudence(Theory of law) is not superior a blame I will put squarely before the Lwas Schools. It is unfortunate that . even many State and County laws are seriously unconstitutional. You might be surprised that even your neighborhood ordinances are highly ecessively punitive and unnecessary.

Consider that you car pool with somebody just to save the planet from pollution. Then your passenger has a half joint of marijuana in his pocket. You are pulled over for a very minor traffic violation and the officer smells marijuana on your passenger. Both of you are searched and bingo the officer finds the substance in your passenger’s possession and the person owns up. Both of you are arrested eventhough you the driver does not have power to search your passenger carpool friend- a violation of privacy.
The owner/driver becomes a drug user by default. This is an example of a bad. Gues what you are going to be arrested and thrown behind that stinking and unhygienic jail. If you do not have any person to bail you; possibly you may end up in cell with probably a murderer of a rapist.

Bob why don’t you lead in the formation of an action group to press for the purging of all unnecesary laws that is criminalizing everybody. What annoys me when you are told the law is the law. What is the Supreme Court doing about all this punitive laws. Afterall they are one barnch of the Government.

Behind Barr's

July 29th, 2011
10:20 am

Speak for yourself.

Darwin

July 29th, 2011
10:22 am

Congress can only handle one thing at a time since all Republicans want is power. They simply can’t do anything without grandstanding and trying to get votes. The federal crimes listed seem to indict environmental laws. See, it’s those eco-extremists! No mention of the federal drug laws pushed by conservative law and order policiticans – who generally are Republican. If we are under seige of laws that govern behavior of social mores – it’s due to the right wing. Look in the mirror Bob.

GT

July 29th, 2011
10:25 am

Joe the Plutocrat the Republican party has offered me therapy for a decade. They spent billions if not trillions for Homeland. No large disaster could befall this country. Dead bodies floating in the streets of N.O. for days. Lots of therapy. We kill Iraq’s devil leader and the war is over. Hundreds of dead soldiers and another trillion dollars later, a tap dance on an aircraft carrier and the war is still not over. Therapy is the reality and the reality is there is not a standing army waiting to invade this country. What we have now is nuts pretending to be normal, and all around them “normal” people pretending nothing is going on. This is our enemy of the 21st century, nuts. And to add insult to injury we have allowed them to take over our congress. The Tea Party are as dangerous as the guy blowing up airplanes they are all part of the same enemy, nut army.

Lt Col Razorback

July 29th, 2011
10:39 am

For “casloagvv” – Here YOU go with thAT stupid argument about illegal immigration. Georgia recently passed an insane law making it illegal to hire illegal immigrants and now Georgia is paying the price for its insanity. Not only are not enough “illegal” immigrants available to reap the peach orchards and vegetable farmS, legal immigrants are acting out their protest by also refusing to bring in our crops. The pay is so low and the work so hard that even parolees from prisons refuse to work in the fields. So, TELL ME how many farming jobs have illegal immigrants taken away from the citizens of Georgia? Not a damn one!! Yet people like “casloagvv” are still up in arms against immigrant, legal or illegal. GET A LIFE casloagvv!!

mpercy

July 29th, 2011
10:41 am

This was predicted…

“Did you really think that we want those laws to be observed?” said Dr. Ferris. “We want them broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against – then you’ll know that this is not the age for beautiful gestures. We’re after power and we mean it. You fellows were pikers, but we know the real trick, and you’d better get wise to it. There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now, that’s the system, Mr. Rearden, that’s the game, and once you understand it, you’ll be much easier to deal with.”

interested observer

July 29th, 2011
10:47 am

Excuse me, Bob, but what happened to the adage that “ignorance of the law is no excuse.”

We may have too many laws, but we CERTAINLY have too many individuals and corporations doing their damnedest to enrich or empower themselves without regard to the welfare of others. Generally speaking, laws are passed because there is a need. The Constitution does not address speeding; does that mean we should allow drivers to navigate I-75 and I-85 at 120 mph?

As new problems arise, so too must new laws to protect the public. And saying you didn’t know driving 120 mph on I-75 wasn’t against the law does not invalidate the law.

interested observer

July 29th, 2011
10:48 am

Correction: “driving 120 mph on I-75 WAS against the law…”

GT

July 29th, 2011
10:53 am

Well said mpercy and Lt Col Razorback. Illegal immigration is a conservative made problem, just like intergration. Law define our views of people. It serves the purpose of the powerful.

.

caslosgvv

July 29th, 2011
11:01 am

Lt Col Razorback

If farmers insure that “the pay is so low and the work is so hard” by their greed, then we should just look the other way while our immigration laws are broken? You are obvioulsy just another stooge of Big Business, and would gladly see laws ignored right and left as long as a big profit margin is maintained.

Joe the Plutocrat

July 29th, 2011
11:02 am

GT, I think I agree with you. I simply take exception to your use of the word “we” (as I am not, nor have I ever been a member of the Grand Old Party). That said, this is not a we/they issue. Interesting observations about immigration/legislation. Who benefits from undocumented workers? The businesses that employ them (cheap labor), AND the more left of center politicos who court their votes. I have said this many times, under many names, on many blogs; political issues (same sex marriage, drug laws, abortion, debt ceiling, immigration) are merely the lines set by bookies to get people into the casino. The real “winners” are the casino owners (PLUTOCRACY). Or, as I noted yesterday; think of the old Miller Lite Less Filling vs. Tastes Great ads; it was designed to have BOTH SIDES buy Miller Lite.

gman

July 29th, 2011
11:12 am

Was the “less filling” controversy ever real? I mean, who was on the side of it being less filling? Light is just as filling as any beverage. Water is filling. The whole idea is hooey.

GT

July 29th, 2011
11:34 am

Joe agreed but the problem in my mind is the consumer. They don’t think for themselves, they are told what to think. That use to be for the good, like get your vacinations or vote. Now with Fox and some of these news outlets it is not so good. We are incubating nuts in a mass production room that think they are real Americans. They are watching the live pro wrestling show thinking it is real. If is brainwashing at its finest.

charles

July 29th, 2011
11:37 am

I think the concerns Barr articulates are valid beyond debate. I also think the fact that he cites Edwin Meese, who as attorney general chaired a panel seriously considering the criminalization of pornography, is ironic beyond the bounds of comedy.

Joe the Plutocrat

July 29th, 2011
11:44 am

gman, does the “G” stand for grasshopper? you have snatched the pebble from my hand, it is time for you to leave the temple. of course the whole idea is hooey. that’s my point (the system is a ruse). politicos and pundits are de facto carny barkers who exist to lure rubes into the tent to see the bearded lady, or lobster boy (or the aforementioned casino). GT, I agree and disagree; Fox News (and MSNBC, PBS, et al) is not “incubating nuts”. 90% of homosapiens (and 95% of American homosapiens) are nuts. ergo, they are merely playing to the “nuts”. in other words, they’re not creating the nuts, they’re merely presenting/producing programming that appeals to dimwitted, shallow, base Americans. so my friend, you are correct it is akin to pro wrestling, but pro wrestling didn’t create stupid Americans, stupid Americans created (the demand) for pro wrestling (bread and circuses).

GT

July 29th, 2011
12:01 pm

Well said again Joe and I follow what you are saying and agree. But there was a time in this country when people at least tried to act like they cared for others and had some common sense. And there was a pretty defined definition of what that was. Maybe the left started being more casual but it didn’t take long before churches were looking like rock concerts, casual Fridays became the whole week and places like Wall Street became more social less disipled to match their clothing, which met an accountant with no personality now made millions. In the middle of all that RL shows up on radio and makes people feel good about being low academic achievers or male pigs or feeling good about hate as a whole. Now I swear to you I don’t know in a conversation when I have insulted someone and stay worried about that more than what I am trying to say. Filling less filling arguments can get a man shot.

Len

July 29th, 2011
12:36 pm

Laws should have expiration dates.

Joe the Plutocrat

July 29th, 2011
1:09 pm

ALL laws originate from the understanding the homosapiens are essentially self-serving, greedy, and a bit narcissistic. as such, it is the role of the politician (aka ‘lawmaker’) to draft/enact laws that serve his/her interest to remain in power. this can only be done by “selling” to the to higest bidder. this is the essence of the American political process, which of course, produces ALL laws. and feel free to switch civil laws with religious laws/dogma (especially the ones that suggest man is essentially sinful and only worthy of salvation/eternal happiness via the laws of this book or that book).

Lee

July 29th, 2011
2:15 pm

Let us not forget the #1 government agency that epitomizes the “guilty until you spend your life’s savings proving your innocence” mantra – none other than your friendly Internal Revenue Service.

Voice

July 29th, 2011
3:36 pm

Aquagirl

Were you just born stupid or did you have an accident?

seabeau

July 29th, 2011
3:40 pm

We need to force the States to call for a Constitutional Convention to forever restrict and control the power of the Federal Government. James Mason was right!!

Common Sense

July 29th, 2011
5:06 pm

if we are arrested for a felony, and convicted, then we are no longer allowed to bear arms. I am certain this is our government’s way of disarming the American citizens. Its a felony to not file your taxes, its a felony to not pay child support, how can many of us do this, when we NO LONGER HAVE JOBS HERE IN THE UNITED STATES ?????

Voice

July 29th, 2011
5:10 pm

There is no way the federal government will ever be able to take guns away from people. Even in hell holes like Chicago. Yep, they have the strictest gun laws in the union and they also have the highest gun crime rate in the country. Rahm and Daley can talk all they want about gun control but they are in control of nothing except bankrupting Illinois.

Warm Springs, Georgia

July 29th, 2011
5:46 pm

The only thing we have to fear, is fear itself.

A Conservative Voice

July 29th, 2011
6:35 pm

USSR, here we come…….

JaLarion

July 29th, 2011
7:32 pm

I’m always intrigued by the federal offenses that have been committed by people who receive Presidential pardons. Pres. Obama recently pardoned a guy who was convicted of the felony of “mutilating coins”; years earlier as a young man he had altered some pennies to work like dimes in vending machines.

Bob is right, there are so many of these absurd laws on the books that any one of us can be in violation at any given time and not even realize it.

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