Tackling the Problem of Overcriminalization
Article from For Liberty by Norm Leahy.
Lurking in the background of the unrest gripping parts of the country this week is an old story that needs to be brought back to the forefront: America has too many laws.
The technical term for this is “overcriminalization,” the idea that we’ve made so many things illegal, it’s possible for the average person to violate major federal laws just about every day without even trying.
The rapid expansion of the federal criminal code is a big part of the problem. But state and local governments are no slouches when it comes to overcriminalization:
Thousands of statutes, regulations, and local ordinances carry criminal penalties in each state. Arizona has over 4,000 statutory offenses that can result in a criminal conviction. North Carolina has added five sections to its criminal code each year since World War II, and its legislature has added 318 new crimes since 2009 alone. These numbers are compounded by the fact that our state legal systems are a patchwork of laws, where even crimes with the same name require a variety of different statutory elements across state borders.
What happens when so much is made illegal?
The story of fisherman John Yates presents a second concern commonly raised about overcriminalization: arbitrary or abusive prosecution. Prosecutors brought charges against Yates and secured a felony conviction for a violation of the “anti-document-shredding” provision of the Sarbanes-Oxley Act. What did Mr. Yates do to deserve time in a federal prison? He threw three of the approximately 3,000 fish he caught that day back into the ocean because he knew they were undersized according to federal regulations, in effect destroying evidence. While the Supreme Court overturned his conviction eight years later, not everyone facing a similar situation has the chance to have the Supreme Court hear their case.
The simple solution to reducing overcriminalization is for governments to reform their criminal codes, removing laws that are either outdated, arbitrary, or fail to define criminal intent.
That’s surprisingly hard to do, though some states have succeeded in cleaning up some portions of their codes…with much more left to do.
Tackling overcriminalization won’t prevent the scenes unfolding on the streets today. But it will work in the background, curbing the incentive – and the legal basis — to make a criminal out of just about anyone.