Politics & Policy

The Criminal-Justice Reform No One’s Talking About

Prison inmates at Oak Glen Conservation Fire Camp #35 in Yucaipa, California, November 6, 2014. (Lucy Nicholson/Reuters)
Regulators shouldn’t be able to create crimes.

In early October, Senate Republicans introduced three bills to reform the federal approach to criminal justice. Earlier versions of these bills had formed the core of a legislative package that stalled under President Obama. While these measures are worthy of serious consideration, they miss a key problem in need of reform: “criminalization without representation.”

Anyone who paid attention in fifth-grade social studies would assume that Congress, which makes the law, knows how many crimes are on the books. But that assumption is mistaken. In fact, one of the new bills, introduced by Senator Chuck Grassley (R., Iowa), would require the attorney general to compile a list of all federal criminal offenses.

This highlights, but does not address, a fundamental defect in our justice system: Congress doesn’t know how many federal crimes there are because Congress didn’t create most of them; unelected regulators did. Rules made this way should not serve as the basis for anyone’s imprisonment. At most, those who break them should be subject to civil enforcement measures, such as fines, unless and until Congress signs off on criminalizing the conduct at issue.

According to the best estimates of scholars who have studied overcriminalization, Congress is directly responsible for approximately 5,000 of the over 300,000 criminally enforceable federal rules and regulations. Nearly 99 percent of crimes on the books were never voted on by anyone accountable to the public.

How did this happen? As the federal government inserts itself into more areas of American life — particularly since the New Deal era — it has created a growing network of bureaucracies tasked with making rules that govern everything from agriculture to corporate bookkeeping. According to the Federal Office of Personnel Management, the number of civilian employees in the executive branch has tripled since 1940.

Thanks in part to the development of legal doctrines that require courts to defer to a federal agency’s interpretations of the scope of its own authority, the federal bureaucracy has become dominant in making the rules by which we live. For every law Congress passes, federal agencies create 18 regulations, according to the Competitive Enterprise Institute’s “Unconstitutionality Index.” Many of these rules, thanks to overly broad grants of authority by Congress, have criminal teeth.

The CrimeADay Twitter account, which tracks federal crimes, provides some examples of the conduct eligible for the severe sanction of federal imprisonment. Among them are prohibitions on selling “spaghetti sauce with meat” that is less than 6 percent meat, driving on the beach at the Cape Cod National Seashore without a shovel in the vehicle, and taking a used “farm tool” from New York into New Jersey. There may very well be a good reason not to transport used farm tools from New York into other states, but should it be a crime?

Bureaucrats in administrative agencies create crimes only under congressional grants of authority. Far too often, Congress writes bills with regulatory “catch-all” provisions that deem criminal any violation of any regulation created pursuant to the statute. For example, a federal regulation promulgated by the Department of Homeland Security prohibits bringing a bicycle into a building of the National Institutes of Health. That regulation is authorized in Section 1315(c) of Title 40 of the U.S. Code, which criminalizes any “regulation prescribed” pursuant to that provision of law. That is, the violation of any regulation, no matter how trivial, authorized by that particular statute can make you a federal criminal. The U.S. Code is littered with such clauses.

We can be imprisoned for breaking rules made not by our elected representatives pursuant to a vote, but by faceless administrators.

Not only has this practice resulted in an absurdly bloated body of criminal law, it has a turned a core feature of our constitutional republic on its head. Our founders went to war in part because they were subjected to taxes they had no say in. Yet today we can be imprisoned for breaking rules made not by our elected representatives pursuant to a vote, but by faceless administrators inside the drab office buildings that house our federal agencies — people whose names never appeared on a ballot.

The vast majority of criminally enforceable rules were never presented to a congressional committee or debated on the floor of either legislative chamber. They did not survive a vote; nor were they presented to the president for a ratifying signature. Therefore, they should not form the basis for anyone’s imprisonment.

Congress can address the detachment of criminal lawmaking from the political process by requiring congressional approval of regulations as a prerequisite for criminal enforcement, restricting to the realm of civil enforcement rules that are not explicitly signed off on. If we are to achieve Abraham Lincoln’s vision of a representative government that is “of the people, by the people, for the people,” someone in Congress should consider proposing a plan to bring criminal lawmaking back into the purview of the representative branch of our government, where it belongs.

Rafael A. Mangual is a fellow and deputy director of legal policy at the Manhattan Institute for Policy Research, and a contributing editor of City Journal.

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