A few times, now, we’ve talked about how there are too many federal crimes, and how an enormous number of them are frankly unjust. We’re just one of many voices crying out about this deep and dangerous problem. The other day, the WSJ entered the conversation with a piece titled “Federal Offenses: As Criminal Laws Proliferate, More Are Ensnared.” We’re not going to comment on the piece other than to say it’s well written, and worth reading.
It is certainly true that the number of federal crimes has risen rapidly in recent decades. And it is beyond rational dispute that a growing number of these crimes are flatly unjust.
Far too many are created by regulatory bureaucrats, unbeholden to any voters, as tools for enforcement of their strictly civil rules (the proper methods of enforcement being fines and restrictions/denials of permit). And by “far too many” we mean “all crimes created by regulatory agencies.” Criminal law is not just some tool for rule enforcement; it is the singular means by which the awesome might of the state is brought to bear to punish those whose conduct is so bad that society demands that we take away the transgressor’s liberty, his property, his reputation, and sometimes even his life. As an old bureau chief of ours used to say, “it is a big fucking hammer, not to be used lightly.”
Many of the federal crimes are unjust for that reason, because they do not punish conduct that society (through elected officials) requires punishment. Far too many are also unjust because they lack any mens rea requirement (almost all regulatory offenses fall into this category, btw). For the non-lawyers out there, mens rea is the mental state one had when committing an offense. It is the factor that changes the severity of one’s offense. A firm principle that evolved in our Anglo-American jurisprudence is that the state should not punish someone for something that was only an accident. There has to be some culpability. There is no culpability for conduct that was purely accidental. There is slight culpability (and therefore only slight punishment, if any) for conduct that was merely negligent, i.e., you should have known better even if you didn’t. There is more culpability, and more punishment, when you knew what you were doing, or knew what might happen but didn’t care. And the greatest culpability and most severe punishment is reserved for those who intended to commit the offense. That’s mens rea. Crimes that do not have a mens rea element are called “strict liability” crimes — the state doesn’t care if you made an honest mistake, or if you were deceived, or if it was the purest accident. All the state cares about is whether you committed act X under conditions Y.
Strict liability crimes are as unjust as they come. They don’t deter anything, because you can’t deter conduct that is mistaken or accidental. They don’t rehabilitate anyone, because strict liability offenders didn’t have any criminal tendency needing to be rehabilitated in the first place. They don’t remove threats from our streets, because offenders are unfortunates, not predators. And society doesn’t call for retribution in such cases, because there’s no culpability deserving of retaliatory harm. There is simply no just basis for strict liability crimes. Yet they make up a huge proportion of federal crimes, particularly those which are not enacted by Congress.
The number of federal crimes has been rising dramatically for some years now. And nobody knows how many there are, now. Many have tried and failed to count them all, including the government itself. Wags repeat the line that each of us commits three felonies a day — but who can say when even the enforcers don’t know what they’re enforcing. How just is it for crimes to exist — which the offenders are responsible for and expected to be aware of, as ignorance of the law is no defense — when the government itself can’t keep track of them?
As Cornelius Tacitus wrote in his Annals, corruptissima re publica plurimae leges — “the more corrupt the state, the more numerous the laws.” “Corrupt” here meaning not so much “criminal” as “dysfunctional.”
What’s going on here? A lot of it is a reflection of the growing power of the federal government, and its intrusion into more and more of what people do. It’s been a slow process, and so we’ve all sort of gotten used to it. But like a frog slowly being boiled to death, the harm is no less real just because it wasn’t noticed.
In the United States, the government serves a fairly limited purpose. Its job is to do those things we all want done, but can’t or won’t do on our own. Local governments do things that individuals and families can’t do as readily for themselves, like policing and filling potholes and schooling the kids. State governments do things that local governments can’t do so well on their own or in concert, like road construction, legislation, forestry, corporations, and generalized regulation. The federal government is really only supposed to do things that the states can’t do themselves, such as national defense, treaties, regulation of trade, interstate transportation, and the like. (Where conservatives, libertarians and liberals differ in this country is mainly where to draw the lines — what things government should and should not be doing.)
What we’ve been seeing for a couple of generations now is a centralization of a lot of state and local functions in the federal government, particularly in the growth of the power and scope of regulatory agencies, but also in the willingness of Congress to legislate just about anything. Some of this came about because the 10th Amendment reservation of powers to the States was hijacked by the foul racism that had to be overcome by the Civil Rights movement, so that the very concept became tainted in some people’s minds. That’s more of an issue for older generations, though. For those not yet at retirement age, what’s more important is that the federal government came to be seen as the place to be, the place where things actually get done. Since about the mid-60s, state and local government has steadily dwindled in the general consciousness, except when some hot-button issue like gay marriage reminds people that the states are really where it’s at. Except for those rare occasions, it has just become natural for people to look to the federal government, and not their local governments, for solutions.
And so we get a lot of federal criminal laws that duplicate state laws. The same conduct can be prosecuted by one’s state, and by the feds. They are certainly different sovereigns, and each can safely prosecute you separately without violating double jeopardy. But if the states are already dealing with certain conduct by criminalizing it, what possible reason can the feds have for also criminalizing it? To our mind, at least, it is an improper usurpation of power. If the states can deal with it, the feds should let them do so and stay out of the way.
And so we also get a lot of federal agencies passing regulations and rules that cover more and more of what we do. And they are increasingly being enforced by strict-liability criminal provisions. As a result, the number of non-violent federal crimes has skyrocketed since the Clinton administration. People go to prison for violating rules, even when no harm was done. People go to prison for complying with the rules, but not completing the paperwork properly. A cursory review of the various agencies’ annual reports can read like a horror show.
Law enforcement has an interest in reducing the excessive federal criminalization. It reminds us of a story from Chinese history. Some soldiers got stuck in a bog on their way to a general muster. The following conversation ensued: “What is the penalty for being late?” “Death.” “What is the penalty for desertion?” “Death.” “Well, we’re late.”
When everything is a violation of the law, the people lose respect for the law. Lawlessness becomes more likely, not less.
So what can be done?
The problem has taken a couple of generations to build. And it’s only been accelerating. A quick fix is not likely (saving, perhaps, the election of a president willing to rein in the administrative agencies in the executive branch, and willing to restrict what the DOJ does and does not enforce — we’re not holding our breath).
But now we’re starting to see signs of opposition. It’s small, now, and the voices are scattered. But we’re hearing more and more voices, lately. If more voices join in, calling for the undoing of this excessive federal criminalization, perhaps soon we’ll achieve critical mass. Enough to call it a movement. Maybe even enough to get results.
For those who have bothered to read this far, here is a delightful example of how easy it is to reach critical mass and create a movement: