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You Could Break the Law and Not Even Know It: Why Overcriminalization is Everyone’s Problem and How to Fix It

[I]f the public are bound to yield obedience to the laws, to which they cannot give their approbation, they are slaves to those who make such laws and enforce them. —Samuel Adams, writing as Candidus, Essay in the Boston Gazette, (January 20, 1772)


IMAGINE IF YOUR SON OR DAUGHTER were charged with a crime because he or she reported being bullied or abused by other students in the classroom.

That is what happened to Christian Stanfield, a 15-year-old boy from Pennsylvania, who suffers from Attention Deficit Hyperactive Disorder, anxiety, and a comprehension delay disorder. Because of his condition, Stanfield’s classmates frequently ridiculed and bullied him. They often shoved and tripped him. Once he was nearly burned with a cigarette lighter.

One day, Stanfield decided to put a stop to the abuse. He used his school-issued iPad to make an audio recording of the insults and threats that the students directed at him during math class. During the class, according to a transcript of the audio he captured, one student near Stanfield told another student: “You should pull his pants down!” The other student replied with a vulgar comment about Stanfield. Moments later, a loud noise was made by a textbook being slammed shut near Stanfield’s head. Then a group of boys could be heard laughing in the background.

Confident he had proof that would finally compel the school authorities to intervene, Stanfield brought the audio recording to the principal of South Fayette High School. But instead of providing help and assistance, Stanfield was met with resistance and the threat of criminal prosecution.

The local police were called to the school and advised Stanfield he would face a felony wiretapping violation for recording the bullies without their consent. The Pennsylvania wiretapping law was being unreasonably enforced, and, by its own terms, was inapplicable in this case. Nevertheless, it was enough for the school to suspend the young boy for reporting academic abuse.

The bullies in school were now getting help avoiding accountability from bullies in the government.

Stanfield’s story is just one of many episodes of American citizens becoming trapped by an overcriminalized legal system. It is a system that puts a Florida fisherman in prison for six years for importing lobsters packed in plastic rather than paper, that jails a North Carolina man for 45 days for selling hot dogs without a license, that jails a Florida woman for filming a traffic stop. Citizens are finding themselves trapped by the very system that is supposed to protect them; and they are being prosecuted for actions that most people would not recognize as criminal offenses.

While it is important to maintain the rule of law to ensure order in society, it is equally vital to apply the law with fairness and justice. Punishing unsuspecting citizens for morally blameless behavior is unjust and fosters disrespect for the legal system.

What Is Overcriminalization?

When most people hear the term “overcriminalization,” they naturally associate it with an abundance of laws relating to criminal behavior. It is that, but more.

Overcriminalization is the overuse or misuse of the criminal law. Professor Darryl K. Brown of the University of Virginia describes overcriminalization as a “term that captures the normative claim that government creates too many crimes and criminalizes things that should not properly be crimes.” Overcriminalization manifests itself in a variety of ways, including overly broad definitions of criminal acts, excessively harsh sentencing, and imposing criminal sanctions for simple mistakes or accidents under a theory of strict liability. Each aspect of this phenomenon puts ordinary Americans in legal jeopardy for their everyday behavior and undermines the legitimacy of the rule of law.

The adage that “ignorance of the law is no excuse” no longer squares with the tremendous growth of the criminal law, and the modern reality that even judges and lawyers have a hard time discerning what is and what is not legal.

Take, for example, the bizarre criminal investigation of the Gibson Guitar Company. In 2011, armed federal marshals raided Gibson’s factories searching for illicit wood guitar components. Allegedly, Gibson had imported wood from India and Madagascar in violation of those nations’ laws. The federal government eventually charged Gibson under the Lacey Act, which makes it illegal for an American company to violate the environmental laws of another country. Even though the Madagascan law was not even written in English, Gibson Guitars was forced to sign a “criminal enforcement agreement” and pay a $300,000 penalty.

Overcriminalization also punishes individuals with good intentions for honest mistakes. In 2014, Shaneen Allen, a single mother from Pennsylvania, bought a handgun for protection after being robbed twice in a year. The next week, she drove to her son’s birthday party in New Jersey, where the police pulled her over for a traffic infraction. The police found the gun, and instead of giving Allen a ticket decided to charge her with a felony gun violation. Allen carried a lawful permit for carrying a gun in Pennsylvania, and believed she was in compliance with New Jersey regulations. In this case, the state eventually decided not to prosecute Allen, and instead offered a pretrial intervention program that allows Allen to avoid jail time. That decision, however, was made only after a public furor over the possibility that Allen would have to serve at least three years in jail simply for failing to realize her Pennsylvania permit wasn’t good in New Jersey.

The effects of overcriminalization extend to citizens from all walks of life. NASCAR legend Bobby Unser was charged with trespassing on federal property when he became lost in a blizzard and drove his snowmobile on federal land to seek shelter from the storm. Although he was unaware of his surroundings and assumed he could escape the blizzard, the federal government charged him under a theory of strict liability with trespassing, an offense that carried a potential penalty of a six-month prison sentence and a $5,000 fine.

These instances highlight the reality of how easily the average citizen can be ensnared by the law. But the problem with overcriminalization is not limited to aggressive prosecution or misapplication of the criminal code. As a practical matter, the current system perpetuates the problem of overcriminalization by creating voluminous additions to the law. The list of illegal activities grows longer every year. As a result, people are being deemed criminals for breaking rules and regulations they did not know were in effect.

Many laws today lack a criminal state of mind standard—also known as a mens rea standard. Such a standard would protect the average citizen from being turned into a criminal for otherwise normal behavior.

Consider how many laws exist at the federal level alone: The Code of Federal Regulations (a compendium similar to the U.S. Code), currently has 80,000 laws in over 200 volumes. There are nearly 5,000 federal crimes and an estimated 300,000 implementing regulations, also known as regulatory crimes, on the books, with more being created every year. These numbers do not even take into account the abundant number of state criminal laws and regulations that also exist and continue to expand. The adage that “ignorance of the law is no excuse” no longer squares with the tremendous growth of the criminal law, and the modern reality that even judges and lawyers have a hard time discerning what is and what is not legal.

James Madison, writing The Federalist 62, warned against the expansive nature of the American legal system:

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Wise words. It cannot truly be said that modern citizens can or should reasonably be expected to know, understand, and follow every aspect of the criminal law.

How did America become a place where everyday activity could be construed as a criminal act? One obvious explanation for the proliferation of new laws is a political one. Institutional incentives encourage legislators seeking re-election to create new laws in an effort to appear “tough on crime” and to respond to constituent demands to “do something” whenever anything bad happens in our society. There is significant political will to enact new criminal statutes, but scant support to repeal bad ones. Each new criminal law, however vague, empowers prosecutors, many of whom have a tendency to consider every questionable act that harms somebody as a crime. The roots of overcriminalization are ingrained in the system.

How Do We Fix the Problem?

A program of reform should do two things: first, reexamine the way laws are written; second, modify the way laws are enforced.

John Malcolm of The Heritage Foundation has laid out a strategy to accomplish the first part of that reform. Malcolm says Congress should identify every federal statute and regulation that contains a criminal provision and post it for the public to read in an easily accessible location. Then, he says, Congress should pass a law that says that in order for a person to be convicted of a crime, he must be proven to have had an intent to break the law. Many laws today lack this criminal state of mind standard—also known as a mens rea standard. Such a standard would protect the average citizen from being turned into a criminal for otherwise normal behavior. Under Malcolm’s plan, such a standard would be the default standard for criminal statutes, unless Congress specifies otherwise.

The second component of reform is to modify the way laws are enforced by creating a “mistake of law” defense. Paul Larkin Jr. of The Heritage Foundation has conducted extensive research about the merits of such a proposal. He writes:

Properly defined and applied, a mistake of law defense would be a valuable addition to the criminal law today. It would exculpate morally blameless parties for conduct that no reasonable person would have thought was a crime. The defense would ensure that no one could be convicted of a crime when criminal liability was unforeseeable.

The importance of this defense is immediately evident when applied to the vast number of obscure regulatory crimes. Citizens who act reasonably and in good faith would be shielded from the obtuse application of unduly burdensome or vague laws. Overcriminalization has ruined the lives of thousands of Americans, and the response to its effects should be equally vigorous.

The good news is that momentum is building for fixing overcriminalization. The effort is supported by a diverse array of organizations, including the American Civil Liberties Union, Families Against Mandatory Minimums, The Heritage Foundation, Justice Fellowship, the Manhattan Institute, the National Association of Criminal Defense Lawyers, and the Texas Public Policy Foundation. Because overcriminalization could ensnare anybody, the solutions offered to solve this problem unite people from all backgrounds.

Continued pressure is needed to remedy the injustices of overcriminalization and to prevent its continuation. Without serious reform, stories like Stanfield’s will persist as government officials target citizens who never imagined they were committing a crime. Unless the rights of victims of overcriminalization are vindicated, the American system of justice will lose its integrity.

Mr. Richardson is a visiting legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.