America’s Ever-Expanding Criminal Code

From The Wall Street Journal:

How many federal crimes has Congress created? The question seems like it ought to have a straightforward answer that citizens can look up. In fact it’s more like asking, “how many genes are in the human genome?” The answer is in the many thousands, but despite decades of counting, no one knows for sure.

A new project by the Heritage Foundation and George Mason University’s Mercatus Center says it is “the first effort to ‘count the Code’ since 2008.” The researchers created an algorithm with key phrases like “shall be punished” and “shall be fined or imprisoned” to search tens of thousands of pages in the U.S. Code.

In the 2019 Code, they found 1,510 criminal sections. By examining some of those sections at random, they estimated that they encompass 5,199 crimes in total. The Heritage Foundation report notes that “there is no single place where any citizen can go to learn” all federal criminal laws, and even if there were, some “are so vague that . . . no reasonable person could understand what they mean.”

By running their algorithm on past versions of the U.S. Code going back to 1994, the researchers also estimate the rate at which criminal laws are proliferating. There were about 36% more criminal sections in 2019 than 25 years earlier, for an overall growth rate of 1.27% per year. More than half of the growth took place from 1994 through 1996. Since the mid-1990s, the biggest annual increases were in 2005-2006 (2.48%) and 2011-2012 (2.76%).

These figures, the report emphasizes, don’t cover the 175,000 page Code of Federal Regulations, which contains an unknown number of crimes created by executive-branch officials under authority delegated by Congress. The results can be grimly amusing. Defense lawyer Mike Chase has highlighted many examples, such as a 2006 regulation that creates a potential five-year prison sentence for bringing more than $5 of nickels out of the U.S.

But even when it comes to conduct everyone agrees should be criminal, the inexorable expansion of the Code has serious consequences for justice and federalism. The Constitution envisioned that most lawbreaking would be handled by state governments, while the federal government’s jurisdiction would be narrower.

As Congress asserts jurisdiction over conduct already criminalized by states, however, that division erodes. “Duplicative” laws mean prosecutors can “charge different people committing the same offenses with different crimes, opening the door for bias,” the report notes.

Or they can be prosecuted twice for the same offense. The Supreme Court has held (most recently in 2019’s Gamble v. U.S.) that consecutive state and federal prosecutions don’t violate the Fifth Amendment’s double-jeopardy clause.

Link to the rest at The Wall Street Journal (PG apologizes for the paywall, but hasn’t figured out a way around it.)

In lieu of a rant, a sense of PG’s thoughts concerning the WSJ article, from The Oxford Eagle:

Lavrentiy Beria, the most ruthless and longest-serving secret police chief in Joseph Stalin’s reign of terror in Russia and Eastern Europe, bragged that he could prove criminal conduct on anyone, even the innocent.

“Show me the man and I’ll show you the crime” was Beria’s infamous boast. He served as deputy premier from 1941 until Stalin’s death in 1953, supervising the expansion of the gulags and other secret detention facilities for political prisoners. He became part of a post-Stalin, short-lived ruling troika until he was executed for treason after Nikita Khrushchev’s coup d’etat in 1953.

Beria targeted “the man” first, then proceeded to find or fabricate a crime. Beria’s modus operandi was to presume the man guilty, and fill in the blanks later.

Link to the rest at The Oxford Eagle

2 thoughts on “America’s Ever-Expanding Criminal Code”

  1. This is a bit illusory and reflects some of the problems with “evolving society.” For example, the blithe statement that “The Constitution envisioned that most lawbreaking would be handled by state governments, while the federal government’s jurisdiction would be narrower.” came from a period in which the only major commercial or population centers sitting “on” state lines were Philadelphia and New York — and crossing the state line to either commit or escape after a crime required crossing a river (without any bridges). And, of course, the proportion of the population in such circumstances was vastly lower.

    <sarcasm> Then, too, there were neither multistate/multinational media conglomerates nor securities marketplaces with international influence, so perhaps the WSJ and its ownership needs to think a little bit about whether it would prefer defending suits on a routine basis in Bannock County, Idaho (where there is a federal courthouse, true enough). </sarcasm>

    There has been increased federalization. The subtext of the article is that that is necessarily a bad thing because the Founders didn’t imagine it. I had lots of experience before law school seeing state-court law enforcement deal harshly and often unfairly with outsiders, and that’s precisely the point of “federalizing” anything (as allowed for in the Constitution itself, see Art. III § 2 ¶ 1). So I’m more of a, pardon the pun, case-by-case evaluator of “federalizing” criminal law.

  2. I had lots of experience before law school seeing state-court law enforcement deal harshly and often unfairly with outsiders, and that’s precisely the point of “federalizing” anything

    Absolutely. The federal government would never deal harshly or unfairly with anyone.

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