The Issue

Thousands of harmless activities are now classified as crimes in the United States. These are not typical common law crimes such as murder, rape, or theft. Instead, they encompass a series of business activities such as importing orchids without the proper paperwork, shipping lobster tails in plastic bags, and even failing to return a library book. There are over 4,000 existing federal criminal laws. (The exact number of laws is unknown because the attorneys at Congressional Research Service who were assigned to count them ran out of resources before they could complete the herculean task.)

In addition to the profusion of federal statutory crimes, there are additional state crimes (Texas alone has over 1,700), and federal regulatory offenses (approximately 300,000). The creation of these often unknowable and redundant crimes, the federalization of certain crimes traditionally prosecuted at the state level, and the removal of traditional mens-rea requirements all contribute to a relentless trend known as overcriminalization.


The Impact

Significant differences between criminal and civil law make criminal law an overly blunt instrument for regulating non-fraudulent business activities. Whereas administrative rulemaking and civil proceedings may utilize a cost-benefit analysis to evaluate the conduct at issue, no such balancing occurs in criminal proceedings because, theoretically, criminal law covers only those activities that are inherently wrong.

Also, because criminal law is enforced entirely by state prosecution, it tends to minimize the role of the victim. Indeed, the prototypical “regulatory” offense does not include anyone actually being harmed as an element of the offense. Finally, civil and criminal law have traditionally been distinguished by the requirement that a criminal must have a guilty state of mind. An increasing number of regulatory offenses nevertheless dispense with this requirement or require mere criminal negligence rather than intentional, knowing, or reckless conduct.

The Conservative Solution

  • Stop creating new criminal offenses as a method of regulating business activities. Regulation is better handled through fines and market forces, not the heavy stigma of criminal sanction.
  • Avoid licensing new occupations and revise laws to eliminate criminal penalties that are currently associated with many occupations.
  • Ensure that an appropriate culpable mental state is included in the elements of all offenses.
  • Return the responsibility for prosecuting and punishing traditional crimes to the states.
  • Revise criminal laws to remove ambiguities and consolidate redundant laws to help prevent prosecutorial abuse.