Time to Arrest the Federal Criminalization Spree

Published January 29, 2015

Wall Street Journal

The new Congress has taken a wise step to start throttling back its propensity to churn out new and often dangerously flawed criminal laws. Under a rules change adopted on Jan. 6, the House Judiciary Committee now has the opportunity to review and improve the language of any bill that creates a new federal crime or modifies an existing one.

The rules change makes eminent sense. The House Judiciary Committee was created to review and amend “defective” laws during James Madison ’s administration. Since 1880 the Judiciary Committee’s jurisdiction has, at least officially, included all federal criminal laws and penalties. But in recent years, a problematic referral practice prevented Judiciary Committee review of some bills creating or modifying crimes.

Criminal punishment is the greatest power that government routinely uses against its own people. When employed justly and appropriately, it is vital to any safe and productive society. But when employed too frequently and aggressively based on a superabundance of overly broad and otherwise flawed laws, the criminal justice system unnecessarily destroys lives, livelihoods and families. Creating criminal laws without meaningful Judiciary Committee oversight is legislative recklessness, akin to Congress regulating Wall Street without meaningful involvement by the House and Senate financial services committees.

The danger is widely recognized. A growing chorus of federal judges, practicing attorneys, policy experts and law professors has for years been decrying the confused and confusing legal morass created by the thousands of federal criminal laws already on the books. An increasing number of Democratic and Republican officials, such as Rep. Bobby Scott (D., Va.) and Rep. Bob Goodlatte (R., Va.), and organizations on the left and the right, such as the Heritage Foundation and the National Association of Criminal Defense Lawyers, agree.

In 1989, a Justice Department study found it impossible to provide a definitive number of all the statutory criminal offenses in the U.S. Code. The study estimated there were about 3,000 such offenses; but that estimate excluded the thousands of crimes created by the far more extensive code of federal regulations. Worse, federal crimes constitute no coherent, systematic body of law; instead they are randomly scattered throughout all but one of the U.S. Code’s 50 titles.

The number of federal crimes has only increased since 1989. Law professor John S. Baker ’s research concluded that by 2008 the number of statutory federal crimes had increased to about 4,450.

In 2010, the Heritage Foundation and the National Association of Criminal Defense Lawyers published a joint report, “Without Intent,” focused on the number, committee oversight and quality of criminal laws proposed and created during a single two-year Congress. We found that in 2005 and 2006 alone, Congress proposed 446 nonviolent, nondrug criminal offenses and enacted 36 into law.

Yet the House and Senate together granted their respective judiciary committees oversight for less than half of the proposed criminal offenses. More than half of the offenses proposed, and more than three out of five of the offenses actually enacted into law, lacked an adequate criminal-intent requirement. Criminal intent—or, in lawyer-speak, mens rea —is a fundamental and an essential requirement of justice in criminal law. Among other innocent people, it protects an individual who has no reason to know that his conduct is prohibited by some very obscure criminal law buried in one of the dozens of oversize volumes of the U.S. Code.

The good news is that the House rules change capitalizes on promising data. Our 2010 research also showed that referring a criminal law proposal to the House Judiciary Committee has a statistically significant likelihood of improving the quality of the law’s criminal-intent requirement.

The House Judiciary Committee now has jurisdiction over all “criminalization.” The rules have left the term undefined. However, the House rules committee used a broad term in order to signify that the House Judiciary Committee now has jurisdiction over all proposed statutory “criminalization” regardless of whether the language defining the penalty is already in existing law. This is an important step toward weaning Congress off its overcriminalization addiction, but the amendment does not automatically ensure committee review. Further reform will be needed to make such review mandatory, both in the House and the Senate.

With the indispensable support of the nation’s legal and policy communities, the Judiciary Committee’s job will be to ensure that any new criminalization is actually necessary—that means that it is narrowly tailored to solve a specific problem not already addressed by the thousands of existing federal criminal laws. Any new or amended criminalization must have an adequate criminal-intent requirement. And Congress must take steps to ensure that all criminal penalties are proportionate to the harm and wrongfulness of the prohibited conduct.

This early action by the 114th Congress is a heartening signal that members of both parties may at long last be prepared to roll up their sleeves and get down to the long-overdue business of reforming America’s bloated criminal law and criminal justice system.

Mr. Walsh is a scholar and attorney at the Ethics and Public Policy Center. Ms. Joslyn is counsel, White Collar Crime Policy, at the National Association of Criminal Defense Lawyers.

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