August 9, 2002

August 9, 2002 | Commentary on Crime

Rush to Judgment

You can't say our elected representatives in Congress aren't responsive.

When a crisis arises, they can be overwhelmed by the need to do something to solve the problem. Only the "something" doesn't always help and sometimes makes things worse.

Remember the so-called epidemic of carjackings in the early 1990s? Motivated by the hue and cry and the need to appear responsive, Congress passed a law in 1992 that made it a federal felony to carjack a vehicle. Henceforth, carjackings could bring 15 years in federal prison, 25 if someone got hurt and the death penalty if the victim died.

But, according to the Bureau of Justice Statistics, the federal government prosecutes only about 230 carjacking cases annually. All other cases addressing the 49,000 carjackings attempted or completed each year are filed under the state laws that existed before the federal law took effect.

Much the same is happening today. In the wake of the accounting scandals that have dominated headlines this year, the Senate voted to make destruction of audit papers a crime punishable by up to five years in prison and to establish a new federal crime of "securities fraud," punishable by up to 10 years in prison.

Not to be outdone, the House of Representatives countered with a bill to make the maximum penalty for mail and wire fraud 20 years imprisonment and the maximum penalty for the new securities fraud crime 25 years. When the two bills were reconciled, lawmakers agreed on the greater penalties, and President Bush signed the bill into law.

But will these new criminal laws help? First off, the "new" crimes aren't truly different from the "old" crimes. The only difference is that the old crimes of mail and wire fraud required the relatively trivial matter of proving that a Fortune 500 company has used the U.S. Postal Service or the telephone.

More importantly, the complexity and ubiquity of federal criminal law, whose proliferation in recent years boggles the mind, actually fosters disrespect for the rule of law. An American Bar Association task force on the federalization of criminal law noted that more than 3,000 federal criminal offenses existed in 1999. Those offenses incorporate more than 10,000 separate regulations.

Federal crimes are now so diverse and so widely scattered throughout the federal code that the exact number of criminal statutes or criminal regulations literally can't be known. That's right: We not only can't say exactly what is illegal under federal law, we can't even say how many laws there are. When Congress asked the Congressional Research Service to try and figure this out, officials there begged off, saying the task was virtually impossible.

This breeds disrespect for the law and disaffection with the judicial system: When lawmakers themselves can't identify all the laws they've made, it borders on the arbitrary and capricious to allow prosecutors to select from among those laws which to prosecute and to whom to apply them-especially when other prosecutors might look at identical facts and decide they warrant only civil sanctions.

More importantly, if we truly want to stop corporate fraud, we need to realize that the likelihood of being caught and punished does far more to deter criminals than the maximum length of sentences. Enacting big maximum sentences may grab headlines, but to truly protect Americans from the Adelphias and Enrons of the world, we need to make sure real fraud gets detected and punished. That means we must work to distinguish between true frauds and technical regulatory offenses. In other words, separate those with larceny in their hearts from those who failed to file all their forms on time.

Making this distinction is more important than ever now that we're devoting a large portion of federal crime-fighting resources to national security. Every minor regulatory offense the FBI investigates means one less true instance of fraud that gets detected.

Prosecuting violations of the ban on honeybee importation or police extortion cases where the only connection to interstate commerce is that the motorist paid the officer with cash from an ATM shouldn't take precedence over true fraud cases. Before Congress passes its next set of laws to strengthen penalties for the crimes grabbing headlines that day, perhaps it should consider repealing a few laws as well.

About the Author

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies

Related Issues: Crime

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