Between 2000 and 2007, the United States Congress created 452 entirely new crimes, a rate of over one new crime every week. By the end of 2007, the U.S. Code included more than 4,450 federal crimes, with an estimated tens of thousands more located in the federal regulatory code. Worse, a joint study released this May by The Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL), found that more than half of the bills that would have added or modified non-violent, non-drug criminal offenses in 109th Congress (2005-2006) Congress were not even referred to their respective judiciary
President Ronald Reagan’s Attorney General Ed Meese writes at NRO about a House rules change that could be a first step toward a solution:
The incoming House majority has promised to change the way that business is done in Washington — to look out for the average American and for small business. It faces one of its first opportunities to do so this month, when the new members select the proposed rules that will govern the House. If the House wants to show that it is not going to perpetuate business as usual in Washington, a good first step would be to adopt a rule requiring every bill that proposes or modifies a federal crime to be referred to the House Judiciary Committee before heading to the floor. This simple, common-sense change would help to curtail the current crisis in federal criminal law — a crisis resulting from the enactment of hundreds of duplicative and, too often, unconstitutional criminal laws that trap average Americans and hurt small businesses.
This October, Heritage Foundation Senior Legal Research Fellow Brian Walsh explained, during a House Judiciary Committee hearing, why overcriminalization is a threat to the rule of law:
Placing thousands of vague, overbroad criminal laws in the hands of government officials means that no one is safe from unjust prosecution and punishment. Many of these criminal laws punish conduct that the average person would not guess is prohibited. The body of criminal law thus fails to meet one of the primary requirements of due process: providing individuals with fair notice of what conduct can be punished criminally.
Since our nation’s founding, a core principle of our system of justice has been that no citizen should be subjected to criminal punishment for conduct that he did not know was illegal or otherwise wrongful. This principle is expressed in the requirement that the government must prove a defendant acted with criminal intent before subjecting him to criminal punishment. Responding to this undermining of our nation’s founding principles and the need for major changes in how the federal government criminalizes behavior, a wide range of conservative, liberal, and independent organizations have joined forces to push back against arbitrary government criminalization, including the American Bar Association, American Civil Liberties Union, Families Against Mandatory Minimums, The Heritage Foundation, Manhattan Institute, National Association of Criminal Defense Lawyers, and the National Federation of Independent Business.
This rule change is a key first step towards rolling back the overcriminalization of America.