The Corner

A Criminal-Law Crisis

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.

It would be reasonable to think that all criminal-law proposals already receive judiciary-committee oversight. But in fact, criminal-law proposals are often introduced in the House, reported to the full body for consideration on the floor, and passed with little or no judiciary-committee oversight.

This past May, the Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) released a major joint study of the Republican-controlled 109th Congress (2005-2006). The study showed that slightly more than half of the bills adding or modifying non-violent, non-drug criminal offenses in that Congress were not referred to their respective judiciary committee. 

Unsurprisingly, insufficient review by the judiciary committees appears to contribute to substantial quality problems in criminal law. Approximately 60 percent of the criminal offenses studied lacked an adequate criminal-intent (or “guilty mind”) requirement. For centuries, criminal-intent requirements have served to protect those who technically commit an offense but do so without knowing their conduct is unlawful or otherwise wrongful.

Insufficient judiciary committee-review also contributes to criminalization at breakneck pace. The Heritage-NACDL report found, for example, that the 109th Congress introduced more than 200 bills adding or modifying more than 440 non-violent criminal offenses. In a separate study covering all categories of criminal law, law professor John S. Baker Jr. found that from 2000 through 2007 Congress enacted 452 new federal crimes. That is an average of one new crime enacted every week of every year, including when Congress is not in session.

Overcriminalization is not a Republican problem or a Democratic problem — both parties have made substantial contributions to it. Preliminary analysis indicates that the astounding pace of federal criminalization has continued at similar rates throughout the Democratic-controlled 110th and 111th Congresses.

#more#But there was one bright spot in the Heritage-NACDL report: Review and oversight of criminal-law proposals by the House Judiciary Committee had a positive effect on the quality of the legislation in the 109th Congress. The right response, therefore, would be for the new Republican majority to adopt a rule requiring automatic sequential referral to the judiciary committee of any bill that adds or modifies a crime.

Although far too many bills circumvent regular order and are passed and even enacted into law without adequate committee oversight, criminal law is unique. No other law carries with it the potential of depriving an average American of his personal liberty through a prison sentence; destroying his career, livelihood, and reputation; and denying his constitutional rights to vote, to travel, and to keep and bear arms.

And in a time of grave economic instability, overcriminalization often results in too much deterrence of beneficial social and economic conduct that is merely disfavored and is not inherently wrongful. The result is small businesses — the primary engines of American job creation — that are either shuttered or never started in the first place. Today, would-be entrepreneurs wanting to make sure they do not become the target of a government investigation or prosecution must expend far too many resources educating themselves about the thousands of technical violations that could cost them their livelihood or liberty.

Inherent within the power to prosecute and punish is the power to coerce and destroy.  Our nation’s founding generation knew from bitter experience that the proliferation of criminal law and the unprincipled use of criminal punishment pose grave dangers to Americans’ most basic rights and freedoms. 

Millions of conservatives and tea partiers, libertarians and independents, communicated in November that they are deeply unhappy with the federal government’s vast overspending and overreaching. A rule requiring automatic judiciary-committee oversight of all House bills adding or modifying criminal offenses or penalties will not alone solve all of the problems of overcriminalization. But it will set new standards for Congress’s criminalization and demonstrate to both parties that, at least in the House of Representatives, big government as usual is coming to an end.

Edwin Meese III is a former U.S. attorney general.

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