Count the Crimes on the Federal Law Books. Then Cut Them.

COMMENTARY Crime and Justice

Count the Crimes on the Federal Law Books. Then Cut Them.

Jun 24th, 2020 4 min read

Commentary By

GianCarlo Canaparo

Legal Fellow, Meese Center

Zack Smith

Legal Fellow, Meese Center

Many of the more than 300,000 regulatory crimes either never have been enforced or are enforced infrequently. Chris Ryan / Getty Images

Key Takeaways

No citizen can know how many federal crimes are out there, all the conduct that those crimes forbid, or even how to find the answers to those questions.

Roy’s bill would require the attorney general to list the elements, the potential penalty, and the mens rea (“guilty mind”) requirement for each crime.

The Count Crimes to Cut Act is a much-needed step toward clarity, transparency, fairness, and oversight of the ever-expanding sea of federal crimes.

Rep. Chip Roy, R-Texas, has introduced the Count Crimes to Cut Act, which represents a much-needed step toward transparency in federal criminal law.

Scholars across the political spectrum have, for many years, decried the astounding growth in federal criminal laws (see, for example, hereherehere, and here).

According to best estimates—and estimates are all we have—there are about 4,500 federal crimes in the United States Code, and more than 300,000 federal crimes dispersed throughout federal regulations.

The truth is that no citizen can know how many federal crimes are out there, all the conduct that those crimes forbid, or even how to find the answers to those questions.

The Department of Justice once tried to count the number of federal crimes and failed, ultimately throwing up its hands in frustration and coming up with only a rough estimate.

That means that even the people charged with enforcing federal law and prosecuting those who break it don’t know how many federal crimes exist.

Worse still, that previous attempt by the government to count the number of federal crimes refused to even touch the myriad crimes created by federal regulations.

The one entity that must take inventory of all federal crimes is the federal government.

The Count Crimes to Cut Act, introduced June 18, would finally force the federal government to do just that. The bill would require the attorney general to provide Congress with a list of all crimes in the United States Code within one year.

Roy’s bill would also require the attorney general to list the elements, the potential penalty, and the mens rea (“guilty mind”) requirement for each crime.

That reporting requirement is much needed because it would enable Congress to reconsider whether the conduct should be a crime and, if so, whether the punishment fits.

It would also allow Congress to reevaluate the mens rea requirement of each crime. That’s something Congress needs to do to ensure that people don’t go to prison for unknowingly or unintentionally violating the law.

The bill would also require the head of each federal agency to provide Congress with a similar list of all the regulatory crimes that the agency enforces.

Furthermore, the bill would require those agencies to report how many violations of each regulatory crime have occurred in the past 15 years.

That last requirement is especially welcome because many of the more than 300,000 regulatory crimes either never have been enforced or are enforced infrequently.

As such, they serve little purpose other than to invite arbitrary enforcement by providing prosecutors the tools to charge nearly anyone with violating some long-forgotten regulation.

That’s more than a theoretical concern. John Baker, a retired Louisiana State University law professor, says: “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime.”

Lest he be accused of hyperbole to make his point, he makes clear: “That is not an exaggeration.”

Finally, the bill would require the attorney general and the head of each agency to establish a public database of all the crimes they reported to Congress.

Those databases would afford people some ability to discover, without the aid of an expensive attorney, whether something they want to do might be a crime. 

A person might be able to find out, for example, that it’s a federal crime to allow your dog to bark and scare wildlife while on a walk through a national park, a class B misdemeanor punishable by up to six months in federal custody.

It’s better to find out something like that before a federal agent arrests you. But it’s even better if Congress is made aware of ridiculous crimes like that so that it can remove them from the books or, at a minimum, adjust any punishment accordingly.

It bears mentioning that this is not the first time that the reforms included in this bill have been introduced in Congress. In 2014, those provisions were included as part of a larger criminal justice reform bill called the Smarter Sentencing Act.

That bill has been reintroduced in the years since, but has never passed.

Heritage Foundation scholar John Malcolm wrote that the provision that Roy has introduced separately here was particularly important. Malcolm called it “a significant step toward making the law more fair and transparent to average citizens by implementing a ‘good government’ measure.” We wholeheartedly agree.

Malcolm’s assessment of those provisions remains as correct today as it was in 2014. 

The Count Crimes to Cut Act is a much-needed step toward clarity, transparency, fairness, and oversight of the ever-expanding sea of federal crimes.

This piece originally appeared in The Daily Signal