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Justice reform is a topic that has received a lot of attention from members of Congress. Front-end sentencing and back-end reentry reforms have dominated the discussion on Capitol Hill, as well as out outside of Washington. Over-criminalization of federal criminal law, however, has not received nearly enough attention.
There has been an explosion in the number of federal criminal statutes over the last several decades. The Constitution lists only three crimes against the federal government -- treason, piracy, and counterfeiting. The First United States Congress, in 1791, defined those crimes and added a handful of new offenses, bringing the total number of crimes against the federal government to 17. These crimes were clearly defined so every American could understand them.
As of 2008, there were 4,500 federal statutes that carried criminal penalties. Additionally, there are an estimated 300,000 to 400,000 rules promulgated by regulatory agencies that can be enforced through criminal penalties. We are at the point in the United States where virtually everyone, even those who had no intent to do so, has engaged in behavior or activities that are prosecutable offenses.
The Over-criminalization Epidemic: The Need for a Guilty Mind Requirement in Federal Criminal Law offers an overview of the problem with federal criminal law and present examples of Americans who were unnecessarily hassled or prosecuted for violations of laws that they unwittingly or had no intent to commit. The publication also offers solutions that lawmakers should consider, such as default mens rea, or guilty mind, requirement to offer protection for otherwise law-abiding Americans who have unintentionally broken a federal criminal law.