Contrary to recent calumnies that “Criminal justice reform is dead,” the 115th Congress has the means, backed up by bipartisan and public support, to continue its work to address problems in the federal criminal code.
Only Congress can enact much-needed mens rea (Latin for “guilty mind”) reform and address overcriminalization, the overuse of criminal laws and penalties to address every problem and punish every mistake. Too many Americans today risk being ensnared by ubiquitous criminal liability — and leaders in Congress have taken note.
Bipartisan Support
Sen. Orrin Hatch, R-Utah, recently described how “regulatory encroachment and congressional inattention” have left politically disfavored Americans stumbling into “technical violations of arcane laws no one knows about” — laws that criminalize mere accidents or “things a reasonable person would not think were wrong.”
Last year, House Speaker Paul Ryan, R-Wis., expressed a desire to advance criminal justice issues, and indicated that they remain a priority this Congress.
Rep. Jim Sensenbrenner, R-Wis., called that “good news for the millions of American[s] currently living with the consequences of over-criminalization in our country,” noting last year that 11 criminal justice-related bills passed out of the House Judiciary Committee. House Judiciary Chairman Bob Goodlatte, R-Va., suggested “responsible, common-sense reforms, to ensure our criminal justice system reflects core American values.”
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Across the aisle, Rep. John Conyers, D-Mich., has “come to the committee complaining about overcriminalization,” and Rep. Sheila Jackson Lee, D-Texas, has said, “We set our sights on comprehensive reform that tackles … overcriminalization.”
“[P]assing bipartisan criminal justice reform” is on Goodlatte’s agenda for this Congress. “We must rein in the explosion of federal criminal laws,” Goodlatte said. The agenda refers to enabling ongoing examination of criminal laws and regulations to protect civil liberties, support law enforcement, and ensure fair and effective enforcement.
Meanwhile, on the other side of the Hill, Sen. Mike Lee, R-Utah, observed:
Increasing bipartisan sensitivity to overcriminalization issues and an increasing openness on the part of members of Congress to re-evaluate federal criminal laws and regulations with an eye toward making some common-sense incremental changes.
State Reforms
Beyond the beltway, state lawmakers have enacted such changes. Ohio and Michigan, for example, adopted default mens rea reform. Michigan legislators unanimously repealed anachronistic criminal laws. Texas and other states are studying their codes, too.
A spring cleaning of the federal criminal code is also overdue.
The Supreme Court proclaimed in Lanzetta v. New Jersey (1939) that “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.”
Lawmakers and regulators have not paid sufficient heed to that decision by enacting laws and promulgating regulations that threaten liberty and property in much the same way that Roman Emperor Caligula did: He hung edicts atop pillars where they could not be read, to more easily ensnare unwitting offenders.
It has been estimated that there are nearly 5,000 federal criminal statutes–although nobody knows the exact number for sure–scattered throughout the U.S. Code, including laws that make it a crime “to transport dentures across state lines” or “install a toilet that uses too much water per flush.”
Trivial ‘Crimes,’ Serious Consequences
Dozens of federal criminal statutes punish specific types of fraud and false statements, overlapping with general prohibitions on the same conduct.
Marine biologist Nancy Black, for one, understands Justice Ruth Bader Ginsburg’s argument that the general false statements statute alone “arms Government agents with authority not simply to apprehend lawbreakers, but to generate felonies, crimes of a kind that only a government officer could prompt.”
And under the Lacey Act — which regulates trading and transporting plants and wildlife — it can be a federal crime to violate laws and regulations written by foreign government officers.
Still, the criminal code does not end there.
The Supreme Court warned, in United States v. Bass (1971), that legislatures, not executive agencies, should define crimes “because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community.”
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Yet today we have an estimated 300,000 or more–possibly many more–federal regulations that can lead to criminal prosecution. These laws criminalize such trivialities as “to allow a pet to make a noise that scares wildlife within a national park” or “to sell mixed nuts if the nuts pictured on the label aren’t in decreasing weight order.”
Omnipresent criminal liability has replaced the rule of law with a rule of discretion, especially when criminal intent is made irrelevant to guilt. Congress should revise the criminal code to prevent the scenario described by The Heritage Foundation legal scholar Paul Larkin, who writes, that “a person must rely for his freedom on the discretion of a prosecutor rather than the clarity of the law.”
The 81st Attorney General of the United States, Michael Mukasey, has written about “The Perils of Overcriminalization.” And the 75th Attorney General and Heritage legal fellow, Edwin Meese III, has long urged Congress to adopt common-sense “Principles to Revise the Criminal Code.”
The 115th Congress knows the need, and has what it needs, to begin putting common sense and fairness back in the criminal code.
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