In a video originally posted over at Legal Insurrection, the folks at Learn Liberty have produced a short YouTube video highlighting several of the issues attendant with overcriminalization in federal statutes—principally, that only around 5,000 federal crimes have been codified into law by elected (read: accountable) lawmakers themselves. While this federalization of criminal law—which has traditionally been under the aegis of state jurisdiction—is concerning in itself, these statutorily-defined crimes are dwarfed by the roughly 300,000 federal regulations also carrying criminal penalties that have been promulgated by unelected officials in the various and sundry federal agencies. In other words, thousands of activities have been deemed illegal by those who don’t have to justify their decisions to the public.
Beyond the sheer impracticality of expecting citizens to be aware of the myriad (and many times, seemingly innocuous) activities that are in fact illegal under federal law, because many of these regulations lack any sort of criminal intent requirements, individuals can still be found guilty of committing them without ever intending to run afoul of the law. This sort of situation has borne serious consequences for countless people who had no knowledge they were breaking the law, nor any desire to do so.
As the video states, “power to create crimes should be put back in the hands of the people’s representatives, where it has always belonged.” This would be a good first step. Equally as important, however, is the necessity of including adequate mens rea requirements for criminal offenses, such that only people with a specific knowledge and intent to commit a crime can be found guilty of one. Additionally, it’s well overdue to consider whether federal government is assuming for itself more authority in the administration of criminal law than is its due, while stepping on the states’ jurisdiction in the process.
The full video can be viewed below: