March Spotlight on Criminal Justice: Overcriminalization

With a new administration in Washington, the time may have finally arrived to address an issue that has plagued the federal government for decades and is only getting worse with the ever-increasing length of the Federal Register: overcriminalization.

How many federal crimes exist? It seems like a straightforward question, but even the Congressional Research Service ultimately gave up when they tried to answer it. Attempted studies estimate there are nearly 5,000 federal crimes in statute (passed by Congress) and likely between 300,000 and 400,000 federal crimes in the regulatory code, promulgated by federal agency rules and published in the Federal Register. Both types hold the full weight of the law to enforce and prosecute.

Considering that our Constitution outlines only three crimes—treason, piracy, and counterfeiting—and the first federal criminal law, the Crimes Act of 1790, outlined a whopping 23 separate crimes, it is safe to say we have deviated dramatically from the system our founding fathers envisioned.

In fact, many argue that the extreme level of criminalization found in our federal code turns average Americans into criminals, unbeknownst to them, presenting a significant threat to liberty and prosperity. To make matters worse, most of these crimes are not even remotely what most Americans would consider dangerous offenses. Renowned author of “How to Become a Federal Criminal,” Mike Chase, humorously but sadly reveals the nature of many of these crimes on the social platform X at @CrimeADay, including such things as selling “Swiss cheese” without holes, offering to buy swan feathers to make a woman’s hat, or riding a manatee.

Although some existing federal crimes are quite comical, their punishments are not. Particularly for those crimes lacking adequate mens rea—or “guilty mind”—standards, Americans can and have been negatively impacted by the lack of consideration regarding criminal intent during prosecution. They have been incarcerated for lengthy periods of time and left with lasting criminal records for things they reasonably did not know or would have no way to know were even illegal.

This should be of particular interest to the Trump administration, as the current president has opined repeatedly about the weaponization of federal law enforcement. For somebody like him, it should be abundantly clear that if the government can come after high-profile individuals, it certainly can come after the average American if it so chooses, with little or no accountability.

As the Heritage Foundation rightly notes, “The criminal law should be used only to redress blameworthy conduct, actions that truly deserve the greatest punishment and moral sanction.” Fortunately, there is more than one way for lawmakers to begin to right the ship of overcriminalization in our country. This can both protect the average American from falling unknowingly into the tangles of the criminal justice system and ensure better use of resources in the system—not only to make sure we are incarcerating those we are afraid of, but to make sure we are not incarcerating those who did not even know they did wrong.

Over the past decade, legislators—primarily led by former Sen. Orrin Hatch (R-Utah)—have attempted to move forward bills that would establish a default mens rea requirement, most often “willful” committing of an offense in order to prosecute, unless otherwise specified. Intent matters when distinguishing between accidents or mistakes and intentional misconduct, and the law should consider these differences when prosecuting violations of the law—federal or otherwise.

Now the ball has moved even further forward, with a bipartisan press attempting to fully inventory federal crimes with an eye toward deciding which ones are unnecessary. A recently reintroduced bill from Reps. Chip Roy (R-Texas), Lucy McBath (D-Ga.), Andy Biggs (R-Ariz.), and Steve Cohen (D-Tenn.), the Count the Crimes to Cut Act, would make great strides toward creating more transparency regarding the full scope of federal statutes and regulations that carry criminal penalties. It would also include information related to current and past prosecutions brought under each offense, along with the mens rea requirement of each.

There is something for everyone when it comes to tackling overcriminalization. Whether ending government weaponization or entangling fewer unsuspecting Americans in the criminal justice system, addressing this persistent problem is necessary to protect public safety and ensure the lasting legitimacy of the law enforcement infrastructure that serves our country.