December 17, 2010

December 17, 2010 | Commentary on Overcriminalization

You Might Be Committing a Federal Crime

Here's one proposition not up for partisan debate: America is woefully overcriminalized, and the criminal law is woefully overfederalized.

Today there are nearly 4,500 federal criminal laws on the books, and most of them have been added in just the last few decades.

A groundbreaking, nonpartisan study conducted this year by the National Association of Criminal Defense Lawyers and the Heritage Foundation revealed that many of these laws lack even the most basic protection: an adequate criminal intent requirement. That means Americans can be convicted and thrown in prison for doing something -- actually, one of thousands of seemingly innocuous things -- they had no idea was against the law.

This overcriminalization has real-world consequences. Throwing in prison people who didn't intend to break the law, or who violated laws that shouldn't be crimes in the first place, imposes an unnecessary burden on taxpayers to pay for their senseless incarceration. This would never be a good use of taxpayers' funds, and it makes even less sense given our current staggering deficits.

Then there are the impacts on individuals and businesses, which are challenged every day to try to figure out what conduct is legal, what is punishable criminally and what some of these laws even mean. Their liberty and their property are at stake. Is this the American way?

This fall, the U.S. House of Representatives Subcommittee on Crime, Terrorism and Homeland Security held a hearing, to a standing-room-only crowd, exploring the problem of overcriminalization and possible solutions. Ranking member Louie Gohmert, R-Texas, was visibly moved by the compelling testimony of expert witnesses and actual victims who relayed horrific stories of lost property -- and years spent in jail -- for completely innocuous actions they had no way of knowing were illegal.

At that time, Rep. Gohmert said Congress must address the problem, no matter which party prevailed in the November elections. "It doesn't matter," he said. "This is so serious. We're talking about people's freedom and the way [federal overcriminalization] adversely affects people's faith in their government. ... We've got to get this cleaned up."

Gohmert is right. And he's not alone. We know subcommittee Chairman Bobby Scott, D-Va., views this as a critical issue.

Gohmert identified a root cause of the problem. "Unfortunately," he said, "many in Congress are eager to respond to the urgings of their constituents, often without due regard for the proper elements of a criminal statute or other existing federal and state laws."

This week, incoming House leadership has the chance to take a step in the right direction when it puts forward proposed rules to govern House business during the 112th Congress.

Among them should be a rule requiring any bill that would modify a criminal offense or penalty to be referred to the House Committee on the Judiciary prior to any floor consideration. The NACDL/Heritage report also found that when such legislation does receive Judiciary Committee oversight, it improves the quality of the bills. Judiciary Committee oversight in this area is, therefore, unquestionably essential.

It's impossible to roll back decades of overcriminalization overnight. But Congress has an obligation to stop it from getting worse.

Shana-Tara Regon is director of white-collar-crime policy at the National Association of Criminal Defense Lawyers. Robert Alt is deputy director of Center for Legal Studies at The Heritage Foundation.

About the Author

Robert Alt Visiting Fellow
Edwin Meese III Center for Legal and Judicial Studies

First appeared in AOL News