The Explosion in the Number of Federal Crimes

We’ve discussed Michael Mandel’s arguments on regulation in this space in the past. Mandel’s basic argument is that it isn’t discrete “dumb regulations” we should worry about. Rather, we need to be considered about how regulations shape the broader economic environment:

In particular, I’ve grown increasingly concerned about the accretion of regulations as a barrier to businesses bringing beneficial new technologies to market.  The problem is that we don’t have a good mechanism for identifying and modifying regulations that are obsolete and burdensome.

This idea came to mind as I read Gary Fields and John Emshwiller in the Wall Street Journal on the proliferation of federal criminal laws:

 

The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. By the turn of the 20th century, the number of criminal statutes numbered in the dozens. Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

There are also thousands of regulations that carry criminal penalties. Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses.

What accounts for this extraordinary increases in the number of federal crimes? 

 

There are many reasons for the rising tide of laws. It’s partly due to lawmakers responding to hot-button issues—environmental messes, financial machinations, child kidnappings, consumer protection—with calls for federal criminal penalties. Federal regulations can also carry the force of federal criminal law, adding to the legal complexity.

With the growing number of federal crimes, the number of people sentenced to federal prison has risen nearly threefold over the past 30 years to 83,000 annually. The U.S. population grew only about 36% in that period. The total federal prison population, over 200,000, grew more than eightfold—twice the growth rate of the state prison population, now at 2 million, according the federal Bureau of Justice Statistics.

I suspect that the explosion in the number of federal crimes has made our society more difficult to govern, and indeed that it has undermined its perceived legitimacy in many marginal communities.

Reihan Salam — Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

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