Trend Toward 'Overcriminalization' Decried
WASHINGTON, APRIL 21, 2003-
Congress has willingly,
even eagerly, handed over a large part of its law-making duty to
un-elected regulators, judges and prosecutors, according to a new
from Paul Rosenzweig, a legal scholar at The Heritage
It was not always so, Rosenzweig notes. For hundreds of years,
only those who wrongfully injured others and did so intentionally
were subject to criminal punishment. Accidents did not qualify as
criminal behavior. Neither did negligence. Those responsible for
accidents or negligence that harmed others paid for the damage in
civil suits. Courts assisted in deciding how much, but they never
considered using criminal sanctions to deliver "social
Today, accidents and negligence are frequently prosecuted as
crimes, says Rosenzweig, Senior Legal Research Fellow in the
Heritage Foundation's Center for Legal and Judicial Studies.
More and more actions previously considered mere civil
transgressions are being criminalized. People who violate federal
regulations are held responsible for "crimes," even if they didn't
know those regulations existed or, in some cases, even if they had
ordered their employees not
to violate the
"There is market of public approval for more criminal laws, and no
effective consideration of countervailing costs to society,"
Rosenzweig says. "In the absence of any judicial check on this
trend, the result is a wholesale transfer of power from elected
legislative officials to prosecutors who, in many instances, are
unelected and not responsible to the public."
The Founding Fathers established exactly three federal crimes in
the Constitution-treason, counterfeiting and piracy on the high
seas. Today, the Congressional Research Service says it can't even
count the number of federal crimes. The American Bar Association
reported in 1998 that there were at least 3,300 separate federal
offenses and nearly 10,000 administrative regulations that also can
lead to criminal prosecutions. They are scattered over 50 sections
of the United States code and consume more than 27,000 pages.
Though the oldest of these regulatory criminal laws date to 1850,
more than 40 percent of have been enacted in the last 30
This growth, Rosenzweig says, has consequences. Federal attorneys
now spend far more time prosecuting behavior that is criminal only
because federal law prohibits it than they do on behavior that is
criminal because it is morally wrong. Between March 2001 and March
2002, federal prosecutors initiated more than 62,000 such cases
against nearly 90,000 defendants.
Ask Edward Hanousek what happens when the concept of enforcing laws
veers so far off course. Hanousek was employed as a road master by
the White Pass and Yukon Railroad, which runs from Skagway, Alaska,
to Whitehorse, Yukon Territory, Canada. As such, Hanousek was
responsible for maintenance and construction of the track and other
facilities of the railroad.
A high-pressure pipeline carrying fuel oil ran alongside the track.
One evening, after Hanousek had left work for the day, Shane Thoe,
a backhoe operator who worked for a contractor hired to load rock
onto railroad cars, loaded a train with rock. After the train
departed, Thoe noticed some rock remained on the track. He drove
the backhoe down and removed the rock. In the process, he ruptured
the pipeline, spilling fuel oil into the adjacent Skagway
Hanousek, not Thoe, paid the price in criminal sanctions because,
according to the courts, he had failed to supervise Thoe
sufficiently. Hanousek and his superior-Paul Taylor-were charged
with negligently discharging pollutants into a U.S. waterway and
making false statements to Coast Guardsmen investigating the
incident. Taylor was acquitted of both charges, and Hanousek was
acquitted of making the false statements. But Hanousek was
convicted and sentenced to six months in prison because he failed
to appropriately supervise the project.
He did nothing morally wrong. He had gone home for the day and had
no knowledge of Thoe's actions. Thoe was charged with nothing. Yet,
Hanousek spent six months in prison. This, says Rosenzweig, is the
type of use of criminal law that must be reformed.