Do We Really Need More Criminal Code Offenses?

Post Date: June 24, 2013

A new bipartisan task force comprising members of the House Judiciary Committee held its first hearing this month to examine the growing problem known as overcriminalization. 

I was cautiously optimistic when I first learned of the task force’s creation, because I believe that the explosion of federal criminal laws—many of which are vague and carry lengthy mandatory minimum sentences – has done more harm than people realize. 

Other events of last week, however, have diminished my optimism about the new task force’s prospects for reversing the overcriminalization trend. 

Less than 24 hours before the task force convened its first hearing, the House Judiciary Committee heard testimony on a new immigration bill that expands the federal criminal code, creates a crime without including a criminal-intent requirement, and establishes new and expands existing mandatory minimum sentencing provisions that will cost taxpayers millions without producing any public safety benefit. 

Not to be outdone, the Senate Judiciary Committee approved a new federal law to crack down on people who steal street signs and cemetery urns. (It’s a wonder the Republic survived so long without this prohibition.) 

Overcriminalization is a real problem. 

The U.S. Code is replete with overlapping federal crimes. Since the early 1980s, the number of criminal offenses has increased from 3,000 to more than 4,500. Often these laws arise from a tragic, high-profile incident and Congress’ desire to appear responsive. 

Because they are drafted in the heat of the moment, these new laws tend to be ill-conceived and dangerously broad. For example, a joint study by the Heritage Foundation and National Association of Criminal Defense Lawyers (NACDL) revealed that three out of every five new nonviolent offenses have inadequate criminal-intent requirements. This means that they fail to protect from unjust criminal punishment Americans who engaged in conduct that they did not know was illegal or wrong. 

Equally scary, these hastily drafted laws usually include severe mandatory punishments that are picked out of thin air and devoid of any empirical support. 

Consider the recently repudiated 100-to-1 crack-powder cocaine sentencing disparity. In its rush to show the American public that it was going to do something about the so-called “crack epidemic,” Congress in 1986 simply made up the punishment as it went along. 

As Rep. Dan Lungren, R-Calif, a member of the House Judiciary Committee at the time, has since admitted, “We initially came out of committee with a 20-to-1 ratio. By the time we finished on the floor, it was 100-to-1. We didn’t really have an evidentiary basis for it, but that’s what we did.” 

A few years ago, Families Against Mandatory Minimums (FAMM) joined the Heritage Foundation, the National Association of Criminal Defense Lawyers, the Texas Public Policy Foundation (home of the “Right on Crime” initiative), and others to sponsor a checklist to help members of Congress suppress their seemingly insatiable appetite to criminalize more conduct. 

The checklist asked members to consider the following four questions before enacting new federal criminal laws: 

(1) Should it be a crime? Members should be convinced that the conduct is so inherently wrongful that it must be prohibited in all circumstances and cannot be discouraged or addressed through civil or administrative penalties. 

(2) Is a new federal criminal law needed? Members of Congress should consider whether the problem is truly federal in nature and whether states can handle it (or already do). 

(3) If it should be a federal crime, what should the criminal-intent requirement be? Congress should ensure that the criminal-intent requirement is adequate to protect the innocent. 

(4) If it should be a federal crime, what is the appropriate punishment? 

The threshold considerations for Congress are whether the crime should be a felony or misdemeanor and whether incarceration or some other punishment would satisfy the needs of justice. 

If incarceration is the appropriate sanction, the sentence imposed should reflect the seriousness of the crime and the culpability, role, and characteristics of the offender. Because mandatory minimum sentencing laws do not allow for this kind of individualized punishment, they are never an appropriate option. 

The checklist is a handy guide for the House task force as it tackles the problem of overcriminalization. 

It should also be required reading before any Member introduces a bill. If Members of Congress, especially those serving on the new task force, seriously believe that we have too many federal crime laws, and that these laws are vague and duplicative, then they should stop passing them. 

They really don’t need expert witnesses to find the cause of overcriminalization. They need a mirror.