Odds are, if you’re reading this, you’ve lived an admirable life. You applied yourself in school, got a good job, and worked hard to be a valuable member of your community. Through your own efforts, you’ve probably earned a position of respect and responsibility. Maybe you run your own shop, or you’re a partner in a firm, or you’re a military officer. Your ethics are beyond reproach. You’re raising your kids to be loyal, kind and brave. You, dear reader, are doing everything right.
And you, dear reader, can very easily find yourself in the defendant’s seat. In the crosshairs of a federal or state prosecution. Facing serious prison time.
For what? For nothing, that’s what. You yourself may have done nothing wrong, but our criminal law has devolved so far, so fast, that you can find yourself being prosecuted anyway.
The worst effects can be seen in federal law. As the regulatory state has expanded, as the “nanny state” has expanded, as the role of the federal government has expanded, the nature of federal criminal law has changed dramatically. Stuff that nobody in their right mind would consider “criminal” has nevertheless been made into a federal crime, not just by congressional statute, but by regulatory fiat.
Regulatory crimes are the worst, because agency regulations are never drafted by people with a background in criminal law. But Congress passes a lot of statutes that happen to contain criminal provisions, none of which actually get reviewed by anyone who knows diddly about it.
And they keep ratcheting up. Elected officials who want to look “tough on crime” love to be able to point to new criminal laws or penalties they enacted. More liberal types are just as bad, if not worse, believe it or not. In our lifetime, the Left has discovered that criminal law is an amazing tool to accomplish the social control that Americans won’t let them achieve through other means. Both conservatives and liberals are at fault. And they’re both hypocrites, at the same time. Conservatives, ostensibly opposed to intrusive overreaching government, intrude and overreach in order to seem tough on crime. Liberals, ostensibly champions of civil rights, trample those rights in order to advance their regulatory agenda. Mutual opponents, both sides of the aisle nevertheless unwittingly cooperate to screw us all.
As a result, there are now so many federal crimes that literally nobody knows how many there are. There is not a single person in the world who knows how many things are crimes under the myriad federal statutes and regulations. The federal government itself can only estimate the number of criminal provisions currently in force. The latest estimate — and again, it’s only an official guess — is that there are somewhere around 4,500 crimes in the statutes, and roughly 300,000 regulatory provisions with criminal penalties. Over the past decade, Congress alone has been adding more than 50 new criminal statutes each year.
Have you read all 4,500 statutes and 300,000 regulations? Do you know what actions can land you in prison? Destroy your life? Take away your reputation, your living, your liberty, and everything you’ve ever striven for?
No? Well, too damn bad. Ignorance of the law is no excuse.
But wait, you say. Sure, nobody’s read all the laws out there, or even knows how many there are. But it shouldn’t be too hard to figure out what kinds of things are criminal. One of the astounding beauties of our Anglo-American jurisprudence is the fact that we don’t punish accidents. We don’t subject people to criminal punishment even for simple negligence. We only punish people who were being bad.
There are two things required for something to be so bad, in our culture, that it needs to be punished. First, there must be a bad act — someone must be harmed. This is usually a variant of lying, cheating, stealing, or injuring. Stuff that’s none of the above is probably not a crime. Second, there must be a culpable mental state — it can’t have been purely accidental or negligent. You had to have been naughty. Either you were trying to do it on purpose, or you knew (or should have known) that it was probably going to happen.
That’s it. That’s all there really is to it. There are arguable exceptions like call-girl prostitution (victimless, so no bad act), or statutory rape (honest mistake as to age is no defense), but precisely because they are so exceptional, everyone knows about them and is at least on notice.
The problem is that the people writing the laws — especially the agency regulations — are, with all respect, completely ignorant. More specifically, they are perfectly ignorant of the basic principles underlying our criminal law. They don’t know why one thing is punishable as a crime and another thing remains firmly in civil law, or if either law even ought to speak to it. They have zero comprehension of why act X is punishable and act Y is not, or why act Z is punishable but not as much.
If any regulation-writers happen to be reading this, here’s how it works: Punishment is reserved for those who personally committed a bad act, and did so with a culpable mental state. For any given act, the severity of the punishment increases with the culpability of the actor’s mental state. Someone who did X and fully intended X to happen gets punished the most. Someone who didn’t intend X to happen, but knew it would happen if he did Y, gets punished a bit less. Someone who expected that X probably would happen, though they didn’t know for sure, and it wasn’t their intent, gets punished a bit less. We say that people acting with these mental states are acting … wait for it … “intentionally,” “knowingly” or “recklessly.”
People writing the various statutes and regulations, however, completely fail to use any consistent set of terms to describe what counts as a punishable act. This leads to tremendous confusion among even professional lawyers and judges who have to interpret what these crimes are.
Even worse, however, they typically just leave out the mental state altogether. In the regulatory world, an astounding number of crimes are crimes of “strict liability.” That means, even if you acted perfectly innocently — if you had no intent, knowledge or even the slightest reason to suspect that X might happen — you are nevertheless guilty of a federal crime, facing federal prison, if X happens to occur.
(And if it’s a federal crime, it’s probably a federal felony. There are an astonishingly small number of misdemeanors in federal law, none of which seem to apply to real people. But that’s a topic for a whole nother post.)
In addition to most regulatory crimes being “strict liability” offenses, we also have a concept of “managerial” or “enterprise” liability, where you can be liable for the action of someone else. Even if you had no idea they were doing it. Even if you’d done everything in your power to prevent it from happening in the first place. The feds do not care how careful you were to prevent it. It happened. You’re getting prosecuted.
You did everything right. And it doesn’t matter. They don’t care. You’re looking at federal prison.
So, without Americans even realizing it, we’ve gone from a principled jurisprudence of malum in se crime, to an unpredictable regulatory fiat of malum prohibitum. In other words, stuff is no longer criminal because it’s wrong, but because some bureaucrat says it’s a crime.
That, combined with the growth of “managerial” liability despite the best controls to prevent rules from being broken, and the failure of rule-makers to comprehend the concept of mens rea, has led to a truly unjust state of affairs.
We are witnessing the end of the distinction between torts and crimes. We are witnessing the end of the distinction between crimes and mere failure to comply with a rule.
Elected officials are at fault — many of them lawyers who ought to know better — for failing to even read the crap they vote for, and for trying to look tough on crime instead of trying to ensure justice. They just delegate all that to the discretion of the prosecutor.
Regulatory bureaucrats are at fault, for failing to understand what the hell they’re doing, and for trying to enforce compliance with their countless little rules with the biggest fucking hammer in the government’s toolbox. They just delegate all the necessary interpretation and responsibility to the discretion of the prosecutor.
And prosecutors are at fault, because all these stupid crimes are (by definition) easier to prosecute. They don’t have to prove mens rea. They don’t have to prove any of the stuff that they’d ordinarily have to prove in order to have a person found liable for a criminal act. All they have to prove is that X happened. Easy peasy. And ambiguously-written laws? The DOJ has never met an ambiguous law it didn’t like.
So they abandon their discretion. They take that easy case. A few may truly be so stupid or deluded as to believe that they’re doing God’s work in sending you to prison for failing to put the right mailing label on that package, or for being the poor sap with a managerial position when one of your employees disobeyed your directives and did something stupid. But most aren’t that stupid, really. They’re just lazy. They elect not to exercise their discretion. And failing to exercise that discretion is, as a matter of law, an abuse of that discretion. So they’re committing prosecutorial misconduct in so doing.
So it’s, uh, kind of a mistake for the politicians and bureaucrats to be delegating justice to the discretion of the prosecutors. Nevertheless, that’s what’s going on.
So what needs to change? Remarkably little.
First, there needs to be a standard language — not unlike the Model Penal Code — so there is some uniformity among all the criminal statutes and regulations out there. The huge variety of terms being used to define any given mens rea and actus reus is so non-uniform that nobody can really be on notice of what they mean. (Sounds like a Due Process violation, if you ask us.)
Second, nothing should be criminalized without the say-so of elected officials. Unelected bureaucrats should not have the power of creating crimes, exposing us all to the worst penalties our government can impose. If it’s important enough to subject someone to criminal punishment, then it’s important enough to require legislative action. And (unlike now) the Judiciary Committee needs to actually read the criminal provisions and okay them. Nobody reads these things now. Seriously.
Third, prosecutors need to be held to their ethical requirements. There is too much opportunity for their discretion to be abused, if only by disuse. We criminal defense attorneys need to make these arguments firmly.
(And of course, a return to more conservative values of less government intrusion into private affairs would be nice, too. But let’s try to keep things realistic.)