It used to be easy to avoid committing a federal crime. If you avoided murder, rape, robbery, kidnapping, assault, battery and theft, there were few options left.
But today you might want to consider hiring a small team of researchers if you want to be confident you won’t end up in federal prison. And even then you couldn’t be sure.
There are at least 4,450 offenses in federal criminal law. That’s the number Louisiana State University law professor John S. Baker Jr., and his researchers came up with in a just-published report.
Baker’s work updates a 1983 count conducted by the Justice Department itself. That tally found more than 3,000 criminal laws — meaning that in just 25 years Congress has created some 1,400 criminal offenses.
Both Baker and the Justice Department cautioned that they couldn’t be sure they had found them all. Congress has scattered criminal offenses throughout the tens of thousands of pages of the United States Code.
Baker’s study also found that at least 454 federal crimes were added from 2000 to 2007. That’s an average of about 56 new federal crimes a year.
In short, Congress has been creating one new crime a week.
Why should you care? Because more and more law-abiding citizens are winding up in a federal net. Hundreds and hundreds of these new offenses criminalize conduct that no one but a government lawyer would imagine is criminal.
An Alaskan inventor who never had so much as a traffic ticket was arrested, indicted and prosecuted by the feds because he failed to put the right sticker on a UPS package. He had no idea the sticker was required, and everything else about his shipment was perfectly legal.
But after being arrested and handcuffed, face-down on the pavement, by a half-dozen SWAT-team officers aiming assault rifles at him, he’s now spending almost two years in federal prison.
Fisherman David McNab, a seafood importer, and a seafood distributor are serving eight-year sentences in three U.S. prisons because McNab packed his catch in a manner that allegedly violated a Honduran regulation. It made no difference to the American courts that the highest officials of the Honduran government certified that McNab had, in fact, violated no Honduran law.
And a recent federal prosecution suggests that anyone who violates the rules of an online social networking site, such as MySpace or Facebook, by registering with a false name could spend up to five years in federal prison.
Making matters worse, few Americans charged with a federal crime ever get their day in court. Even if you are accused of a non-violent crime that doesn’t involve guns or drugs, chances are extremely high that you will plead guilty without getting an opportunity to tell your side of the story to a judge or jury.
The definitions of non-violent crimes are so broad — and federal prison sentences today are so long — that it’s usually far too risky to go to trial even if you never intended to do anything wrong. You’re better off pleading guilty to try to get a shorter sentence.
And ironically, more and more federal criminal laws mean you may be at greater risk of becoming a crime victim. When Congress federalizes violent crimes that are inherently local in nature — carjacking, for example — your local prosecutors and investigators often conclude that they should turn their attention elsewhere and leave that particular crime to the feds.
But the FBI doesn’t have an office in every city, much less agents patrolling every city street. And it’s simply not the job of the feds to keep street crime out of your neighborhood.
If over-federalizing crime is so bad, why does Congress keep doing it? According to the American Bar Association, "new federal laws are passed not because federal prosecution of these crimes is necessary but because federal crime legislation in general is thought to be politically popular."
Even when new criminal laws are "misguided, unnecessary and even harmful," the ABA stated, "it is not considered politically wise to vote against crime legislation."
The political benefits to incumbents of rampant criminalization may explain why from 2000 to 2007 Congress passed three times as many crimes in election years as it did in non-election years. No member of Congress wants to be labeled "soft on crime" for voting against a bill touted as the answer to the most high-profile crime du jour.
No one should become a criminal under the many crazy federal laws criminalizing seemingly innocent conduct. And federal law enforcement shouldn’t be taxed with the job of fighting crime that should be handled by state and local law enforcement.
The proliferation of federal criminal law puts everyone at risk. Congress needs to kick its one-new-crime-a-week habit.
Brian W. Walsh is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation (heritage.org).