Measuring the growth in the number of activities considered
federal crimes is challenging. Ideally, one compares counts of
federal crimes taken at different times and employing consistent
criteria to determine what constitutes a federal crime. Obtaining
comparable data, however, is almost impossible. Nonetheless, a
careful survey of laws enacted by Congress does permit reasonable
estimation of the number of federal criminal offenses.
This report follows from other attempts to count the number of
federal criminal offenses or to measure their growth. The most
complete count of federal crimes, done by the U.S. Department of
Justice (DOJ) in the early 1980s, put the number at 3,000. A 1998
report by a task force of the American Bar Association relied on
the DOJ figure and other data to measure the growth of federal
criminal law but did not itself actually provide a count of
federal crimes. In a 2004 Federalist Society monograph
building on the DOJ and ABA reports, I counted new federal crimes
enacted following the point at which the ABA report finished its
data collection at the close of 1996. That report estimates that
there were 4,000 federal crimes at the start of 2000. This
report updates that total through 2007, finding 452 additional
crimes created since 2007, for a total of at least 4,450 federal
The growth of federal crimes continues unabated. The increase of
452 over the eight-year period between 2000 and 2007 averages 56.5
crimes per year-roughly the same rate at which Congress
created new crimes in the 1980s and 1990s. So for the past
twenty-five years, a period over which the growth of the federal
criminal law has come under increasing scrutiny, Congress has been
creating over 500 new crimes per decade. That pace is not steady
from year to year, however; the data indicate that Congress creates
more criminal offenses in election years.
This study reviews the crimes newly enacted by Congress in order
to: (1) update the number of federal crimes; (2) measure
whether Congress continues to pass federal criminal laws at
the same pace found by the ABA report; and (3) determine whether
the new crimes contain a mens rea requirement, a key
protection of the common law that protects those who did not
intend to commit wrongful acts from unwarranted prosecution and
Counting the number of federal crimes might seem to be a rather
straightforward matter: Simply count all the statutes that Congress
has designated as crimes. After all, unlike state law, federal law
has never had a common law of crimes. Locating purely common-law
crimes requires consulting judicial opinions, and even then,
determining what is and is not a common-law crime is problematic. Given
that federal courts lack common-law jurisdiction over crimes,
all federal crimes must be statutory. So it would seem that
counting statutes should be an easy task.
Making an accurate count is not as simple as counting the number
of criminal statutes, however. As the American Bar Association's
Task Force on the Federalization of Crime stated, "So large is the
present body of federal criminal law that there is no conveniently
accessible, complete list of federal crimes." Not only is the
number of statutes large, but the statutes are scattered and
complex. The situation presents a two-fold
challenge: (1) determining what statutes count as crimes and
(2) determining whether, as to the different provisions within
a section or subsection, there is more than a single crime, and if
so, how many.
The first difficulty is that federal law contains no general
definition of the term "crime." Title 18 of the U.S. Code is
designated "Crimes and Criminal Procedure," but it is not a
comprehensive criminal code. Title 18 is simply a collection of
statutes. It does not provide a definition of crime. Until repealed
in 1984, however, Section 1 of Title 18 began by classifying
offenses into felonies and misdemeanors, with a sub-class of
misdemeanors denominated "petty offenses." Later amendments
re-introduced classifications elsewhere in Title 18. The
repeal and later amendments, however, were tied to the creation of
the United States Sentencing Commission, and this new focus on
sentencing has done nothing to solve-and probably has
exacerbated-the problem of determining just what should be
counted as "crimes." That issue is particularly pertinent for
offenses not listed in Title 18. Title 18 does contain many, but
not all, of the federal crimes. Other offenses carrying
criminal penalties are distributed throughout the other 49
titles of the U.S. Code. These scattered criminal provisions are
usually regulatory or tort-like, sometimes making them
difficult to identify.
The second problem is that, whether it is codified in Title
18 or some other title, one statute does not necessarily equal one
crime. Often, a single statute contains several crimes. Determining
the number of crimes contained within a single statute is a matter
of judgment. Different people may make different judgments about
the number of crimes contained in each statute, depending on the
criteria they employ. In the absence of a definition of crime, it
is incumbent upon the compiler to explain the criteria employed in
making the count. Not intending to re-invent the criteria, I have
looked to previous attempts to count the number of federal
The most comprehensive effort to count the number of federal
crimes was undertaken by the Office of Legal Policy (OLP) of the
U.S. Department of Justice in early 1983 in connection with
efforts to pass a comprehensive federal criminal code. Ronald
Gainer, who oversaw the study, later published an article entitled
"Report to the Attorney General on Federal Criminal Code
Reform." The DOJ's count involved a review by hand
of every page of the U.S. Code, and it put the number at
"approximately 3,000 federal crimes," a figure which has been
much cited since. That number includes all federal offenses
in the U.S. Code carrying a criminal penalty enacted through early
In a 1998 article, "Federal Criminal Code Reform: Past and
Future," Gainer cited the figure of "approximately 3,300
separate provisions that carry criminal sanctions for
their violation." This number was based on a count
done by the Buffalo Criminal Law Center "employing somewhat
different measures" than the DOJ survey. This survey
apparently considered only "separate provisions" as constituting
crimes, while the methodology used in the DOJ count often found
more than one crime in a single provision.
In 1998, the American Bar Association's Task Force on the
Federalization of Criminal Law, chaired by former Attorney General
Edwin Meese and containing this author as a member, issued a report
entitled "The Federalization of Criminal Law." This report was
concerned with the growth in federal criminal law and thus faced
the problem of identifying the number of federal crimes enacted
over periods of time. The Task Force decided, however, not to
"undertake a section by section review of every printed federal
statutory section," which would have been too "massive" an
undertaking for the Task Force's "limited purpose."
The ABA report did conclude that the 3,000 number was "surely
outdated by the large number of new federal crimes enacted in the
16 or so years since its estimation." The ABA report did not
attempt a comprehensive count like DOJ, but it did provide a good
measure of the growth of federal criminal law, which demonstrated
that the number of federal crimes as of the end of 1996 greatly
Although the ABA Report did not actually count the number of
crimes, it drew the following dramatic conclusion from the
The Task Force's research reveals a startling fact about the
explosive growth of federal criminal law: More than 40% of the
federal provisions enacted since the Civil War have been enacted
But the ABA report's approach actually
underestimates the increase in the number of federal
crimes. According to Gainer, the DOJ effort to count crimes
discovered that any attempt to count using computer searches
would consistently undercount crimes. This is why the DOJ did a
complete hand count of federal crimes, which meant reading through
the many thousands of pages of the U.S. Code. The ABA report, for
its purposes, instead conducted a Westlaw search of the statutes
"us[ing] the key words 'fine' and 'imprison' (including any
variations of those words such as 'imprisonment')." As
explained below, this strategy likely missed many crimes.
This current report and the accompanying count were developed
against the background of the DOJ and the ABA Task Force reports.
Like the ABA Task Force, my researchers and I could not review
thousands of pages of statutes in order to complete a count as
comprehensive as the DOJ's, nor even review all the new crimes
enacted since the DOJ completed its count in 1983. The ABA report
did not actually include a count, and even the comprehensive
count by the DOJ report gave the number in terms of an estimate. In
part, that was due to the fact that the DOJ count employed
debatable criteria about how many crimes are contained in a
particular statute. Nevertheless, our count adhered to the
criteria used in the DOJ count. For the current count, we reviewed
legislation from the beginning of 2000 through the end of 2007.
Building on the data in the 1998 ABA report, which run through
1996, my previous report for the Federalist Society estimated that
the U.S. Code contained 4,000 crimes as of the beginning of 2000.
For the present report, we conducted a comprehensive search of
statutory provisions enacted from the beginning of 2000 through
2007. Like the DOJ and ABA reports, this and my previous
report consider only statutes, not regulations. As the ABA report
notes, if regulations were included, that would have added, as of
the end of 1996, an additional 10,000 or so crimes.
Another report from the early 1990s, however, estimated that
"there are over 300,000 federal regulations that may be
For purposes of continuity, this report, like my previous one,
relied on Westlaw searches using the same terms as the ABA report.
For this report, however, we went beyond the terms used by the ABA
report and found more crimes in amendments to existing laws
that did not contain those search terms. Just searching the
database of statutes passed each year using the terms "fine!"
and "imprison!"-the ABA Report approach-does not yield a
comprehensive list of crimes because it does not capture statutory
amendments that do not contain either of those terms. For example,
an amendment to an existing law might revise the statute by adding
an additional subsection. This subsection, due to its placement in
the existing statute, might create a new crime, although it does
not include either "fine!" or "imprison!." Therefore, after using
the search terms "fine!" and "imprison!," the search proceeded to
the "Historical Notes" field for each of the years from 2000
through 2007. This produced several hundred hits for each year (the
highest being about 690 in a single year), which yielded a number
of crimes which were not captured just using the ABA search
In this report, we employed the DOJ report's methodology for
counting the number of new crimes contained within a single
statute. Under the DOJ approach, statutes containing more than one
act corresponding to a common-law crime were determined to have as
many crimes as there were common-law crimes in the statute.  On
the other hand, the DOJ counted a statute as containing only
one crime, even though it contained multiple acts, if those acts
did not constitute common-law crimes.
Specifically, the criteria employed in this report to
distinguish whether the new statutory language did or did not
create a new crime are as follows:
- Each act stated in terms corresponding to the act element of a
traditional or common-law crime (e.g., theft, burglary,
fraud) is counted separately as one crime. Thus, multiple crimes
may be listed in a single section or subsection.
- Multiple acts unrelated to traditional crimes, when stated in
the same section or subsection, are treated as different ways of
committing one crime. Also, elaborations on traditional crimes
(e.g., theft by fraud, misrepresentation, forgery) are
counted as one crime only if listed together in one section or
- If the same or similar non-traditional crimes are listed in
separate sections or sub-sections, each section or subsection is
counted as a separate crime. Attempts and conspiracies to commit a
crime were counted as distinct crimes.
- The number of crimes listed for each section or subsection
indicates only the number of crimes added that year by a statute or
amendment, which does not necessarily equal the total number
of crimes in those sections or subsections originally enacted in an
The Number of Federal Crimes
My 2004 report stated that "Conservatively speaking, the U.S.
Code contains at least 3,500 offenses which carry criminal
penalties. More realistically, the number exceeds 4,000." The
estimate of over 4,000, as of the beginning of 2000, rested on an
evaluation of the information already covered by the counts
conducted by DOJ and the ABA and new data for the years 1997
Since the start of 2000, Congress has created at least 452 new
crimes. So the total number of federal crimes as of the end of
2007 exceeds 4,450. Ninety-one of the 452 were contained in new
laws that created 279 new crimes, and the remaining were contained
in amendments to existing laws. The total of 452 new
crimes breaks down by year as follows: 65 for 2000; 28 for 2001; 82
for 2002; 51 for 2003; 48 for 2004; 13 for 2005;
145 for 2006; 20 for 2007. The Appendix to this report lists
all the federal statutes containing new crimes.
The data suggest a potential electoral motivation behind the
growth of the federal criminal law. Except for in 2003, the number
of new crimes enacted in election years significantly surpass those
in non-election years. While this may be due to the two-year cycle
in Congress and the time it takes to pass a bill, work done on
legislation in a previous Congress need not be completely
duplicated. Bills are, for example, frequently re-introduced at the
commencement of the a new Congress.
This study did not perform a statistical analysis of the number
of crimes created in various discrete areas of substantive law. My
2004 report, however, concluded that a large percentage of the new
crimes came in the environmental area. For the years 2000 through
2007, many of the new crimes were in the following areas:
- National security, i.e., aircraft security, protection of
nuclear and other facilities, counterfeit/ forged insignia and
- Terrorism and support for terrorists;
- Protection of federal law enforcement;
- Protection of members of the armed forces;
- Protection of children from sexual exploitation; and
- Controls on the Internet.
Not surprisingly, many of the new crimes were enacted in
response to the events of 9/11.
Interpretation: A Troubling Trend
As practitioners in the field know well, the number of
criminal statutes does not tell the whole story. Measuring the rate
of growth certainly confirms that Congress continues to enact
criminal statutes at a brisk pace. But no matter how many crimes
Congress enacts, it remains for federal prosecutors to decide
which statutes to invoke when seeking an indictment.
Federal prosecutors have certain favorites, notably mail
and wire fraud statutes, which they use even when other statutes
might be more applicable. That, of course, does not mean that
the addition of little-used crimes is unimportant. The federal
government is supposedly a government of limited powers and,
therefore, limited jurisdiction. Each new crime expands the
jurisdiction of federal law enforcement and federal courts.
Regardless of whether a statute is used to indict, it is available
to establish the legal basis upon which to show probable cause
that a crime has been committed and, therefore, to authorize a
search and seizure. The availability of more crimes also affords
the prosecutor more discretion and thereby greater leverage
against defendants. Increasing the number and variety of charges
tends to dissuade defendants from fighting the charges, because
they usually can be "clipped" for something.
Moreover, the expansion of federal criminal law continues to
occur even without new legislation. Federal prosecutors regularly
stretch their theories of existing statutes. For example, federal
courts often cooperate with prosecutors by making new laws apply
retroactively. What Judge John Noonan wrote in 1984 about bribery
and public corruption continues to be generally true, namely that
federal prosecutors and federal judges have been effectively
creating a common law of crimes through expansive
Ultimately, the reason the ABA report and this report track the
increase of federal crimes is to provide some measure of the
extent to which federal criminal law and its enforcement are
over-reaching constitutional limits. The Supreme Court has
admonished Congress twice within recent years, when it declared
federal statutes unconstitutional, that it lacks a "plenary police
power." The statistical measures in this and
the ABA report indicate that those cases have not dissuaded
Congress from continuing to pass criminal laws at the same
Judicial Interpretation of Mens
A mens rea requirement has long served an important
role in protecting those who did not intend to commit wrongful acts
from unwarranted prosecution and conviction. Mens rea
elements, such as specific intent, willful intent, and the
knowledge of specific facts constituting the offense, are a part of
nearly all common-law crimes. These protections were generally
codified into statutes, as state legislatures adopted criminal
codes, and the practice was continued in the creation of statutes
defining new crimes in addition to those recognized
historically by the common law.
If anything, mens rea requirements are more important
today than in the past. Historically, nearly all crimes concerned
acts that were malum in se, or wrong in themselves, such
as murder, battery, and theft. Today, however, new crimes and petty
offenses created by statute almost always concern acts that are
malum prohibitum, or wrong only because it is prohibited.
This category includes petty offenses and crimes like marketing
medicines not approved by the FDA and shipping flammable materials
without a sticker on the box. For malum prohibitum crimes
and petty offenses, mens rea requirements can serve to
protect individuals who have accidentally or unknowingly violated
the law or, in some cases, were unaware that a law covered their
For the period 2000 through 2007, the great majority of sections
or subsections appeared to have a mens rea requirement,
often employing the term "knowingly" or "willfully." Nevertheless,
55 statutory provisions (some of which contain more than one crime)
contained no reference to a mens rea requirement. Of these
55, 17 are new and 38 amend existing statutes. That means that 17
out of the total of 91 new criminal statutes did not specify a
The Appendix of this report identifies the mens rea
element or the lack thereof for each of the 237 statutory
provisions containing new crimes passed by Congress.
This count concerning mens rea is somewhat
tentative, for several reasons. For example, whether an
offense has a mens rea requirement may depend on a
judgment about the number of crimes contained in a particular
section or subsection. Consider, for example, 18 U.S.C. §
1960, which prohibits "unlicensed money transmitting
businesses" and was amended in the wake of 9/11. The statute
contains several subsections. The 2001 amendments added a new
subsection expanding the definition of "unlicensed money
transmitting business." The added section contains a knowledge
requirement. In our count, the amendment does not count as adding a
crime. While the amendment adds a mens rea, it also
drops a mens rea requirement from an existing provision. If
18 U.S.C. § 1960 is counted as just one crime or if only the
newly added subsection is considered, then the crime carries a
mens rea. That means, however, that the elimination
of the one mens rea requirement may escape notice.
Once again, what counts as a crime dictates conclusions about what
Congress has done in passing a statute-that is, whether it has
or has not eliminated a mens rea requirement.
The linkage between the mens rea issue and meaning of
"crime" goes to the heart of the moral foundation of criminal law,
as Professor John Coffee has explained:
[T]o define the proper sphere of the criminal law, one must
explain how its purposes and methods differ from those of tort law.
Although it is easy to identify distinguishing characteristics of
the criminal law-e.g., the greater role of intent in the criminal
law, the relative unimportance of actual harm to the victim, the
special character of incarceration as a sanction, and the criminal
law's greater reliance on public enforcement-none of these is
Rather the factor that most distinguishes the criminal law is
its operation as a system of moral education and socialization. The
criminal law is obeyed not simply because there is a legal threat
underlying it, but because the public perceives its norms to be
legitimate and deserving of compliance.Far more than tort law, the
criminal law is a system for public communication of values.
When the traditional requirement of mens rea is
weakened, then, the unique features of the criminal law are
undermined, to the great detriment of society. It is troubling
that, in a significant proportion of new criminal
statutes enacted in recent years, Congress has neglected this
crucial component that cuts to the heart of what it means to
be "guilty" of a crime.
As is repeated throughout this report, one's opinion about
what counts as a federal crime drives the count of federal crimes.
Simply focusing on the penalty may not be sufficient because one
penalty often applies to several acts. While federal law
classifies crimes by penalties, federal law does not
provide a clear definition of crime that would allow
distinctions among separate criminal acts. That makes any count
subject to argument. At the very least, however, this report can
conclude the following: Based on the growth of federal crime
legislation since the count in the early 1980s by the Office
of Legal Policy in the Department of Justice, the United States
Code today includes at least 4,450 offenses which carry a criminal
penalty, and the rate at which Congress passes new crimes has not
waned since at least the 1980s.
The Appendix to this report, which lists and describes the
criminal statutory provisions enacted from 2000 through 2007, is
available at https://thf_media.s3.amazonaws.com/2008/pdf/2008_Baker_appendix.pdf.
John S. Baker is Dale E. Bennett Professor of Law at the
Louisiana State University Law Center. The author thanks his
research assistant, Ms. Beverly Froese, who reviewed the federal
statutes and organized the data under his direction.
Force on Federalization of Criminal Law, American Bar
Association,The Federalization of Criminal Law (1998) [hereinafter
John Baker, Federalist Society for Law and Public Policy, Measuring
the Explosive Growth of Federal Crime Legislation (2004)
[hereinafter Federalist Society Report].
See Wayne R. LaFave, 1 Substantive Criminal Law §
United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32
Report, supra note 1, at 9.
ABA report explained:
See 18 U.S.C. § 3581 (classification of felonies,
misdemeanor and infraction in terms of sentencing); 18 U.S.C.
§ 3156(3) (definition of "felony" for purposes of release and
There are 50 titles, but Title 34 currently contains no un-repealed
Ronald Gainer, Report to the Attorney General on Federal
Criminal Code Reform, 1 Crim. L.F. 99 (1989).
Ronald Gainer, Federal Criminal Code
Reform: Past and Future, 2 Buff. Crim. L. Rev. 46, 55 n.8
(1998) (emphasis added).
ABA Report, supra note 1, at 92.
Id. at 7 (emphasis in the original); see also id.
at n.9 ("[M]ore than a quarter of the federal criminal provisions
enacted since the Civil War have been enacted within the sixteen
year period since 1980").
ABA Report, supra note 1, at app. C, 91, n.1.
The Federalist Society Report looked at crimes enacted through
2003, but only drew conclusions about the number of crimes as of
the beginning of 2000. See Federalist Society Report,
supra note 2, at 8.
See ABA Report, supra note 1, at 10.
John C. Coffee, Jr., Does "Unlawful" Mean "Criminal"?:
Reflections on the Disappearing Tort/Crime Distinction in American
Law, 71 B.U. L. Rev. 193, 216 (1991).
Telephone interview with Ronald Gainer (Dec. 29, 2003).
The ABA report does not include a review of amendments.
See ABA Report, supra note 1, at 8 n.10.
18 U.S.C. §§ 1341, 1343 (mail fraud and wire fraud,
See John Noonan, Bribes (1984) at 585-86, 620.
United States v. Lopez, 514 U.S. 549, 566 (1995); United States v.
Morrison, 529 U.S. 598, 618 (2000).
Previously, the relevant portion of the provision (18 U.S.C. §
1960(b)(1)(A)) read "is intentionally operated"; it now reads "is
Coffee, supra note 20, at 193-194 (emphasis added)