In April 1790, the first Congress passed the Crimes Act, a law that established a criminal code in the United States. The Constitution listed only three crimes — counterfeiting, piracy, and treason. The Crimes Act codified those crimes and added a little more than a dozen others, including murder, larceny, and perjury. The list of federal offenses was short and easily defined.
Today, however, there are more than 4,500 federal statutes that carry criminal penalties. That is, at least, the best estimate. There has not been a full accounting of the number of criminal penalties since 2008. In 2013, the House Over-Criminalization Task Force asked the Congressional Research Service to, once again, take on this task. "CRS’ initial response to our request was that they lack the manpower and resources to accomplish this task," Rep. Jim Sensenbrenner (R-Wis.), co-chair of the task force, said at a June 2013 hearing. "And I think this confirms the point that all of us have been making on this issue and demonstrates the breadth of over-criminalization."
This onslaught of federal criminal offenses is relatively recent in the United States’ history. The American Bar Association, in a 1998 report, noted that "[m]ore than 40% of the federal provisions enacted since the Civil War have been enacted since 1970." If this explosive growth in the federal criminal code was not jaw-dropping enough, it pales in comparison to the number of federal regulatory crimes.
A 1991 study, Does ‘Unlawful’ Mean ‘Criminal’? Reflections on the Disappearing Tort/Crime Distinction in American Law, noted that "there are over 300,000 federal regulations that may be enforced criminally." Twenty-four years later, some estimate that there are as many as 400,000 regulatory offenses, many of which are punishable by fines and prison sentences.
It has long been said that ignorance of the law is not a defense, but the laws and regulations on the books in the United States are so voluminous that it is impossible to know when they are being broken. Harvey Silverglate, a civil liberties and criminal defense attorney, has, quite literally, written the book about the epidemic of over-criminalization. In his 2009 book, Three Felonies A Day, Silverglate, who offers several horror stories involving over-criminalization, theorizes that the average American commits, as the title suggests, a trio of felonies on a daily basis, often without ever knowing that a crime was committed.
These offenses can still be successfully prosecuted. Take the case of Alison Capo, for example. Her 11-year-old daughter, Skylar, saved a baby woodpecker from being eaten by a cat. Capo did not know that she ran afoul of the Migratory Bird Treaty Act, under which the woodpecker is protected. She was fined $535 and threatened with jail time. The US Fish and Wildlife Service dropped the citation only after the case received publicity in the news.
"Kids should be able to save a baby bird and not end up going home crying because their mom has to pay $535," Skylar told a local reporter. "I just think that’s crazy." Indeed, it is crazy. Sadly, there are many more egregious examples of over-criminalization. The Heritage Foundation highlighted 21 specific instances from across the country in a publication, USA vs. You: The Flood of Criminal Laws Threatening Your Liberty, where the purported "criminal" broke laws or regulations that they could not have possibly known about.
Unfortunately, federal law and regulations often lack mens rea, or guilty mind, a requirement that derives from the common law tradition. Essentially, with mens rea, prosecutors would have to prove that the accused had criminal intent for them to be culpable for a crime. The criminal intent requirement has, however, been eroded in American law as the number of criminal offenses passed by Congress and promulgated by unelected bureaucrats have exploded.
A May 2010 report, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, from the Heritage Foundation and the National Association of Criminal Defense Lawyers noted that of 57 percent of the 446 proposed criminal offenses in the 109th Congress (2005-2006) "lacked an adequate mens rea requirement." Of the 36 proposed criminal offenses enacted by this particular Congress, almost 64 percent had a weak mens rea requirement or none at all.
Testifying before the House Over-Criminalization Task Force in July 2013, John Baker, a well respected and accomplished legal scholar who has written extensively on over-criminalization, explained how the American legal system came to such a perilous state that puts the liberty of the people at risk. "[W]hen we look at state criminal law, it is relatively easy, even though states have added many non-common law crimes, it is easy because the meat and potatoes of a local prosecutor, which I was, in murder, rape, robbery, theft, burglary, that is what we dealt with. And most juries do not have difficulty figuring out what those crimes are," Baker told members of the task force. "Indeed, in most state prosecutions the issue is not whether there was a crime, the issue is whether the defendant is the person who did it."
"In Federal law it is just the opposite. The issue is not whether the defendant did something; it is whether what he did was a crime. And we know with 4,500 statutes out there, there are plenty to pick from," he said. "And it is easy to pick up one that has, if not a lack of mens rea entirely, a confused mens rea." In his prepared testimony, Baker noted that the Migratory Bird Treaty Act, under which Alison Capo was unnecessarily harassed, does not have a mens rea requirement.
"You know, at the state level we know that we found many people who are innocent in jail because they were factually not guilty," Baker explained. "The problem in federal criminal law is that we have innocent people being convicted not because we have the wrong person, but because they really did not commit a crime" because they did not intend to do so.
In Baker’s view — as well as the view of most conservative, libertarian, and even some progressive legal scholars — is a default mens rea requirement. This would be applied across the board in federal offenses, providing some necessary relief for people who may unwittingly break some arbitrary statute or regulation enacted by Congress or promulgated by a federal agency.
Much of the focus of justice reform efforts in Congress has been on overhauls of front-end sentencing and back-end reentry. These efforts are vital because of the high costs of incarceration and the current approach to corrections, which essentially warehouses offenders, rather than rehabilitate them. But the need for default mens rea is another aspect of justice reform that Congress must consider due to the epidemic of over-criminalization that represents a threat to virtually every American.