Federalism

The Massive Federal Criminal Code

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A new report from the Heritage Foundation attempts to count the number of laws in the federal criminal code.  Author John S. Baker, Jr. estimates we have about 4,500 laws, with another 10,000 if you include federal regulations that can be criminally enforced.  But Baker cautions that the code is so Byzantine, vague, and ambiguous, it's really impossible to come up with a reliable figure.  The Constitution lays out just three federal crimes, and for 200 years, criminal justice policy was mostly left to the states.  That began to change in the 1970s.

Today's federal criminal code is enormous—and growing.  Baker also finds that Congress tends to add more laws during election years (surprise!), that federal judges and prosecutors exacerbate the problem by interpreting federal statutes as broadly as possible (sometimes retroactively), and that new federal laws are increasingly lacking a mens rea requirement.

So we have a bewildering federal criminal code that no one person could possibly completely comprehend, the fact that you can be charged for breaking one of those laws even if you weren't aware that what you were doing was illegal, and increasingly leeway and discretion afforded to prosecutors to interpret all of these laws as broadly as possible.  Throw in the problem of selective enforcement (there aren't nearly enough resources to prosecute all the crimes on the books), and you have a system where everyone's a potential criminal, but prosecutors can pick and choose whom to target.  Federal prosecutors then win convictions in about 90 percent of their cases—and that's only those cases that make it to trial.  Ninety-five percent of federal defendants take plea bargains (which doesn't always necessarily mean they're guilty).

Meanwhile, a new paper from the Cato Institute on federal white collar crime explains how federal prosecutors in corporate crime cases are adopting the Spitzer model, and doing away with trials and courtrooms altogether.  N. Richard Janis writes that the "combination of draconian sentences, lack of meaningful judicial control over the imposition of sanctions, and the impossible burdens on company officers have jeopardized the very nature of our adversary system of justice."  The Cato study says federal prosecutors' enormous leverage under the post-Enron regulatory structure allows them to essentially deputize private corporate counsel to go after targeted employees.

I'd add that the broadly written (and even more broadly interpreted) federal conspiracy and racketeering laws make all of this even worse.  If federal prosecutors don't have the evidence to prove the underlying crime, they'll often fall back on conspiracy or mail or wire fraud charges, which are much easier to prove.

Example of how broadly-written conspiracy laws can entrap the innocent here.  William Anderson and Candice E. Jackson looked at the federalization of crime for reason back in 2004, as did Gene Healy.

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  1. We know you’re guilty. We just have to find it in here somewhere.

  2. If everything is criminal, then everyone is a criminal and criminals have no rights. Just what the fedgov wants.

  3. This is a very important, and overlooked, topic. It needs more than a H&R post. At least an article. I think you could even dedicate an entire issue of Reason to it.

  4. That began to change in the 1970s.

    Can I blame LBJ and the Great Society for this? I want to.

    And don’t try to pretend I’m trying to shift any blame from old “I am not a crook.”

  5. My current pipe dream: get two-thirds of the state legislatures to call for a new Constitutional Convention to “reduce the size and scope of the federal government.”

    I bet it wouldn’t be too hard to get Nevada and Alaska on board.

  6. See, that’s why all this talk of “rights” and “liberty” is so misguided. We are all criminals that just happen to stay out of jail through the mercy of federal government. But step out of line, Bub, and you can be sure that you’ll get a visit from Mr. Jackboot and his Thugs.

    It sort of feels like we are all living in the movie, Brazil now.

  7. Ayn Rand’s quote is more timely than ever.

    “There’s no way to rule innocent men. The only power government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

  8. Warren said:

    I think you could even dedicate an entire issue of Reason to it.

    Or even a book.

    oh

  9. Well, obvious but understated, is just how crufty the American Legal System really is, between the mounds of statute and the mounds of (often conflicting) case law.

    Someone needs to go back to the code and write us a new fucking kernel.

  10. We could just kill all the lawyers.

  11. Epi, but then, tyranny would *reign*!!!!1!eleventy-one!

  12. Ayn Rand’s quote is more timely than ever.

    She’s hardly the first.

    “Give me five lines written by the most honest of men, and I shall find something in them to hang him” – Cardinal Richelieu

  13. Dim: So-called Cardinal, I put it to you that you died in December 1642.
    Cardinal: That is correct.
    Dim: Ah ha! He fell for my little trap.
    (Court applauds and the Cardinal looks dismayed)
    Cardinal: Curse you Inspector Dim. You are too clever for us naughty people.
    Dim: And furthermore I suggest that you are none other than Ron Higgins, professional Cardinal Richelieu impersonator.
    Cardinal: It’s a fair cop.
    Counsel: My you’re clever Dim. He’d certainly taken me in.
    Dim: It’s all in a day’s work.
    Judge: With a brilliant mind like yours, Dim, you could be something other than a policeman.
    Dim: Yes.
    Judge: What?
    (Piano starts playing introduction)
    Dim:
    If I were not in the CID
    Something else I’d like to be
    If I were not in the CID
    A window cleaner, me!
    With a rub-a-dub-dub and a scrub-a-dub-dub
    And a rub-a-dub all day long
    With a rub-a-dub-dub and a scrub-a-dub-dub
    I’d sing this merry song!

  14. Capital, Episiarch! Capital!

  15. Can we talk some more about that “kill the lawyers” thing…it made a tingle go up my leg

  16. If I were not before the bar
    Something else I’d like to be
    If I were not a barr-is-ter
    An engine driver me!
    With a chuffchuffchuff etc.

  17. A preponderance of Legislators are attorneys; we could kill (as it were) two birds with one stone.

  18. Can I blame LBJ and the Great Society for this? I want to.

    No. But you can blame Nixon and a Demodratric controlled congress which is almost as satisfying.

  19. A preponderance of Legislators are attorneys; we could kill (as it were) two birds with one stone.

    This would cut the senate to 42 members, but the house would still have a quorum with 265 members who are not lawyers.

  20. I’ve long thought there should be a constitutional amendment that says Congress can only vote on new statutes every three sessions. That way, as the proposed laws pile up, there would have to be some real serious prioritizing when the time comes to actually vote on them.

  21. jury nullification

  22. Can I blame LBJ and the Great Society for this? I want to.

    No. But you can blame Nixon and a Demodratric controlled congress which is almost as satisfying.

    The first crack in the wall was the aftermath of the Kennedy assassination.

    When Lee Oswald shot JFK the only thing he faced was a murder charge in the State of Texas.

    So everyone decided that it was necessary to pass a Federal law against killing the President.

    You know, just in case there was some state where killing someone wasn’t illegal.

    I think that this was a time when the theory that the Preznit was a much grander personage than his fellow citizens got a further huge boost too.

  23. I’ve long thought there should be a constitutional amendment that says Congress can only vote on new statutes every three sessions. That way, as the proposed laws pile up, there would have to be some real serious prioritizing when the time comes to actually vote on them.

    You’d also have to disallow that omnibus bill bullshit, but yeah, that might help.

  24. When Lee Oswald shot JFK the only thing he faced was a murder charge in the State of Texas.

    So everyone decided that it was necessary to pass a Federal law against killing the President.

    You know, just in case there was some state where killing someone wasn’t illegal.

    I think this would be an opportune time to point out that in Texas, “sonbitch needed killin'” is a real and usable defense.

    Or at least it seems that way sometimes.

  25. lmnop,

    I think this would be an opportune time to point out that in Texas, “sonbitch needed killin'” is a real and usable defense.

    Didnt work for Jack Ruby.

  26. there would have to be some real serious prioritizing when the time comes to actually vote on them.

    Heh- good one.

  27. Didnt work for Jack Ruby.

    When the federal government is trying to make a point, don’t be the one to interrupt…

  28. Didnt work for Jack Ruby.

    Only cause he was a sonbitch, himself.

    You need nice upstanding folk with a high-powered rifle. This up close and personal shit with a snub-nosed revolver tends to piss off even the *he needed killin’* crowd. Especially when the guy wielding the is was an unhinged mob associate.

  29. I’ve been before a judge once or twice. I was amazed to see how much panic this inspired in people who heard about my court dates. Too many people believe the courts are reliable enough for the average person but not reliable enough for anyone they know. After all, equality before the courts and in the voting booths are the two most important equalities out there.

  30. Jake Boone | July 16, 2008, 11:03am | #

    My current pipe dream: get two-thirds of the state legislatures to call for a new Constitutional Convention to “reduce the size and scope of the federal government.”

    I bet it wouldn’t be too hard to get Nevada and Alaska on board.

    You’d wind up with a new constitution where everybody is guaranteed everything at taxpayer’s expense.

    The US would be officially a Christian Nation, anything but the missionary position was banned, and the Bill of Rights gutted (even worse than it is now).

    Most people do not understand the notion of rights being applicable to people they don’t like.

  31. I misspoke; it’s not technically a Constitutional Convention I’m after, but a “Convention for proposing Amendments” to the Constitution, as laid out in Article V.

    So we’re not scrapping the whole thing, and three-quarters of the states would still have to ratify each proposed amendment that came out of the convention.

    Since the only other way to amend the Constitution is to have Congress do it (and how likely are they to limit federal power?), I think having the states give it a shot is the only chance we’ve got.

  32. didnt they get capone on tax evasion? this business of shooting enough cubic footage of manure at you that you cant avoid ending up as fertilizer started way before the 70’s

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