March 9, 2016 | Commentary on Civil Justice Reform, Overcriminalization

Spring Cleaning for Needless Criminal Laws

Millions of people throw out old, useless items every spring. But the 535 members of Congress are not among those people.

The last 40 years have witnessed a prodigious growth in the number of federal criminal statutes, and our federal criminal code now contains more than 4,000 criminal laws. Some of them are as useless as the old English statute that bans the wearing of suits of armor in Parliament. Here are a few examples:

• It is a crime to make unauthorized use of the 4-H club emblem, and the “Smokey Bear” or “Woodsy Owl” characters.

• It is a crime to misuse the slogan “Give a Hoot, Don’t Pollute.”

• It is a crime to poll a member of the armed services before an election.

• It is a crime to manufacture and transport dentures across state lines if you are not a dentist.

• It is a crime to sell malt liquor labeled “pre-war strength.”

• It is a crime to write a check for an amount less than $1.

• It is a crime to install a toilet that uses too much water per flush. (That one is my personal favorite.)

Criminal statutes almost never come with an expiration date, and lawmakers never repeal outdated laws. Some vice laws from the 19th and early 20th centuries are still on the books today. They prohibit the use of interstate commerce to promote a state-run lottery because lotteries were seen as immoral back then. But most Americans today no longer find state lotteries objectionable. In fact, numerous states operate lotteries to raise funds, and the public seems quite willing to allow people to gamble rather than have their taxes go up.

The continued presence of archaic criminal statutes can create a serious problem for the public. An elementary rule of law is that the government must give the public fair notice of what is a crime, so that the average person can comply with the law without needing to hire a lawyer.

Most people are not lawyers, so they do not acquire their understanding of the law via formal education or hands-on experience. They learn what the criminal law forbids from their parents, ministers, teachers, Scriptures and others in their community.

Their knowledge extends to what the moral code puts out of bounds, but it does not stop there. They also come to learn how the law is enforced — that is, which laws are enforced strictly (e.g., murder, rape) or loosely (e.g., speeds limits, bans on jaywalking). Most people then do their level best to abide by the laws they have learned.

The resurrection and enforcement of outmoded, rarely-enforced, or never-enforced criminal laws therefore raises a notice problem. Obscure criminal statutes share a kinship with the laws of the infamous Roman Emperor Caligula, who published the laws in a location up high, where the general public couldn’t read them — thereby keeping the people in the dark about the law.
Were a prosecutor to resurrect a statute that has long been dead, he could trip up someone who intended to comply with the law, but did not know that an archaic law made his conduct a crime. Think that never happens? Think again.

Or, better yet, ask Wesley Force or Danielle Wolf. They were arrested for the crime of dropping an F-bomb in public. Mr. Force ran afoul of New Bern, North Carolina’s, code governing “profanity and boisterous conduct.” Ms. Wolf’s verbal slip triggered her arrest under South Carolina’s “disorderly conduct” law.

Spring is just around the corner. Let’s throw out some useless criminal laws.

 - Paul J. Larkin, Jr., a senior research fellow in the Heritage Foundation’s Meese Center for Legal and Judicial Studies, directs the think tank’s project to counter abuse of the criminal law.

 - This piece originally appeared in The Washington Times.

About the Author

Paul Larkin Senior Legal Research Fellow
Edwin Meese III Center for Legal and Judicial Studies

Originally appeared in The Washington Times