Exceeding Their Authority: When Bureaucrats Create New Crimes, Justice Suffers

One of our bugbears here at The Criminal Lawyer is the excessive number of federal crimes — particularly those that are created by regulators rather than by elected legislators. We’re not alone in this concern, and over the past several months we’ve noticed what can only be called a growing movement for reform.

A particular concern of ours has been the fact that an astonishing number of federal crimes lack any mens rea component. In other words, one can face prison even though their act was perfectly innocent — there was no intent to break the law whatsoever.

Mens rea is an essential part of American criminal justice. We don’t punish people simply because the committed some act or other, or even just because they harmed someone. Even if that harm was grievous. No, before we punish someone, there has to have been some culpability on their part. And culpability is defined by their mental state when they committed the act. There is a spectrum ranging from intentional through accidental, and the closer one was to the intentional end, the more severely we punish them. (If you want to be pedantic about it, there are a couple of other spectra of mental state as well — one’s ability to tell right from wrong, and one’s level of depravity — imagine them as the Y- and Z-axes to the X-axis of mens rea, if you like. But only mens rea is a component of crime itself — the others apply as defenses and as sentencing concerns.)

When defining a crime, here’s how it’s supposed to work: You specify what act you are forbidding, and you specify the mental state required to make it criminal — so bad that it deserves punishment. For example, if you plot to kill your neighbor, and succeed in killing him, then you are going to be punished far more harshly than a careless teenager who kills a family of four when he mistakenly runs a red light. Your act was more intentional, and thus more evil, than that of the teenager. Even though he did far more harm, you are more culpable, and thus your act is more criminal. And a man who accidentally trips on the sidewalk, knocking a little old lady into an oncoming bus? His act isn’t criminal at all. It was purely accidental, and unlike the teen driver he did not deviate from the normal standard of care to any extent that society would punish.

It is true that, as American jurisprudence evolved, there did arise certain “strict liability” crimes that have no mens rea requirement. Things like statutory rape. But those are exceptions to the rule, in the first place. And in the second place, the lack of mens rea is not really applicable — it usually has to do with elements of the crime that your own mental state could not affect one way or the other. For example, in the case of statutory rape, the issue is not whether you knew the girl was under the age of consent, but whether you had sex with someone without their consent — and someone under the age of consent, as a matter of law, cannot have consented to have sex with you. Your mens rea has nothing to do with whether or not she consented. It does not matter whether you knew she was underage, what matters is that she was underage, and thus you had sex with someone without their consent.

But though there were strict liability crimes, they were exceedingly rare.

Until regulators got involved.

Bureaucracy has a way of growing, and of expanding its own authority. Give an agency power to regulate, say, the mouse-pad industry, and they will start writing rules and procedures based on how mouse pads are actually produced and sold. Then they will start writing rules based on how the bureaucrats think mouse pads ought to be produced and sold, perhaps involving idealistic notions or academic fads. Meanwhile, they’ll busily craft tons and tons of rules and procedures micromanaging every aspect of how the main regulations are to be complied with. The number of regulations out there that Americans are expected to follow are uncountable, and nobody knows what’s in all of them. It’s beyond the capacity of the human brain to know what all the rules are.

And all of these rules have the force of law. Even though no elected official ever enacted them. The regulations are imposed, not by elected representatives who speak for (and must answer to) the citizenry, but by unelected government employees answerable to nobody.

That’s all well and good, when they keep within their own bailiwick. If you want to play in the mouse-pad industry, which Congress has seen fit to regulate, then you’re going to have to play by the regulators’ rules. And if you don’t, then the regulator is free to impose a fine or extra obligations you must meet if you wish to keep playing. They may even kick you out of the game entirely and revoke your license.

And when it comes to regulatory enforcement like that, who cares what your mens rea was? The important thing to a regulator is not whether you intended to break the rules, but whether you broke the rules.

That’s where things start getting problematic. Because the regulatory remedies just don’t seem enough. Some people keep breaking the rules, anyway. Or, more often, the regulators start thinking that their rules are so important that violating them requires, not agency sanctions, but criminal punishment.


Crime is defined by society, not by bureaucrats. Crime is something that is so bad that society deems it worthy of punishment — of the government forcibly taking away your liberty, your property, your reputation. Crime is serious, and should only be created by the legislature. People who have no business defining new crimes are now doing it all over the place. That’s problem one.

Problem two is that these people have no clue what they’re doing. They don’t know what crime is, why it’s punished, or how it is defined by our jurisprudence. What they do know is strict liability — simply breaking the rules, regardless of knowledge or intent, is enough for sanctions.

And so they not only create crimes, they define them without any mens rea component.

That can only lead to injustice. There is no other alternative.


Injustice is what we’re getting. The newspapers are starting to pick up on it lately, but it’s been building for a long time. People getting prosecuted for federal felonies, when all they did was unwittingly violate some obscure regulation, without any intent to break any law.

It’s gotten to the point where Ed Meese — Ed Meese, of all people — testified to Congress yesterday that, in addition to the more than 4,500 statutory federal crimes, there are over 300,000 other regulations that don’t appear in the federal code but nevertheless carry essentially criminal penalties including prison. So the vast array of traps for the unwary that lurks out there in federal criminal law is more extensive than most people realize.”

Just think about that, for a moment. Breaking down each kind of crime into a variety of degrees, most states still only manage to require several hundred particular crimes. Congress has enacted thousands — the true number has never been counted — and the regulators have created hundreds of thousands. Most of which are strict liability offenses, requiring a prosecutor to prove neither intent, knowledge or even the slightest bit of negligence in order to secure a conviction.

Meese was testifying before the House Judiciary Committee’s panel on crime, terrorism and homeland security, as part of a series of legal experts from all sides of the political spectrum, speaking out against the insane injustice that this system has created — one in which real people, decent people, are suffering. Branded for life as felons (almost no federal crimes are misdemeanors), facing prison, fines, ruinous legal bills, lost reputations and careers… It is appalling, and it’s about time this movement started gathering momentum.


The problem is complex, but the solution is simple: Prohibit the enactment of any crime, except by statute passed by Congress and surviving presidential veto. No agency may define a crime or provide for the imposition of criminal punishment. Period. Make it retroactive.

If something is so bad that it deserves to be a crime, then let the people’s representatives make it so. Don’t leave it up to the bureaucrats. It’s not their job, they’re not good at it, and we all suffer from it.

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2 Responses

  1. Nathan says:

    I just read a post by Scott Greenfield from this past July, which contains one of the best explanations I’ve yet seen of strict liability crimes and how they evolved. Definitely worth a read.


  2. Howard Hudson says:

    Further agony arrives in the form of what the immigration code calls an “aggravated felony,” which can earn the immigrant banishment (“removal” in the NewSpeak of the Immigration Act) and a lifetime exclusion from the US. An example is the recent SC ruling that a tax problem of several hundred thousand dollars, though paid to the satisfaction of the IRS, was a removable offense. “No harm, no relief…” should be the motto.

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