(Post by Heritage Senior Legal Research Fellow Brian Walsh)

A new year, a new Congress, and already the march of overcriminalization is underway.

Without engaging this Congress in debate or meaningful committee oversight, Rep. Edolphus Towns (D-NY) is trying to ram through legislation–the Presidential Library Donation Reform Act of 2009 (H.R. 36)–that would make it a federal crime to fail to report a donation as small as $200 to a presidential library. The punishment? Up to five years (!) in federal prison.

If this is the precedent that the 111th Congress is setting for how it goes about creating and expanding federal criminal law, it is a terrible one. Few Members had even seen the bill by this morning, and none of the relevant committees have had the time to review it and offer their input. This is not the way that quality law gets made.

Indeed, it is precisely this type of legislative conduct that has resulted in the bloated number of crimes in federal law–over 4,450 offenses in the U.S. Code. And there are so many criminal offenses buried in regulations that Congress’s own research service has characterized the task of finding and numbering them to be impossible.

Organizations spanning the political and ideological spectrums are working together to solve this problem. They are in basic agreement that a lack of committee oversight–particularly by the two Judiciary Committees–and debate on new and expanded criminal provisions is a root cause of overcriminalization. Members of other committees now routinely add or expand criminal provisions.  Yet they routinely fail to bring the Judiciary Committees in on the drafting and study of these bills or allow the Judiciary Committees to bring their expertise to bear in reviewing and revising criminal provisions.

Hundreds of the criminal offenses already on the books criminalize conduct the average American would never dream is criminal; include no meaningful criminal-intent requirement to ensure that Americans do not become criminals inadvertently or by accident; and impose disproportionately harsh sentences in federal prisons, often for conduct that is not inherently wrongful.

Before voting on this or any other bill concerning the criminal law, Congress should engage in substantial committee oversight and debate to ensure that the proposed criminal provision:

  • Addresses a real problem that is not being–and cannot be–addressed under existing law;
  • Has a punishment that fits the crime (or so-called crime) that is consistent with the punishments imposed for similar conduct at the state level;
  • Addresses a truly federal interest; and
  • Includes meaningful criminal-intent requirements that will protect Americans who violate the law only inadvertently or without any knowledge that their conduct is unlawful or otherwise wrongful.

Lest they want more of the same to be part of their legislative legacy, Members of Congress should think twice and then three times rather than engage in any new criminalization born in haste.