Mar 25, 2019

America has an Overcriminalization Problem: But There are Solutions to Fix it

Post by Freedom Partners

By 2008, the number of offenses outlined in the federal criminal code jumped to roughly 148 times its original size, from around 30 to over 4,450. Today that number exceeds 5,000. That includes more than 300,000 regulations that contain criminal penalties.

In a growing republic spanning more than two centuries, it’s not unreasonable to expect greater complexity in our criminal code.

But the sheer scope and content of many of these laws boggles the mind. In 1982, the Department of Justice attempted to compile these offenses in order to demonstrate to Congress the need for reform.

With over 50 titles and 23,000 pages of law, Congress simply refused.

The federal criminal code is not just harmless archived clutter. It outlaws and prescribes punishment for thousands of offenses.

Absurdity in the criminal code

One such law makes it a federal crime to sell a cooked corned beef brisket that weighs more than the fresh brisket did.

Another makes it a federal crime to sell wool products that have a neck, unless the tag is on the inside of the center of the neck, between the shoulders.

This law makes it a federal crime to temporarily bring a horse older than 731 days into the United States for entertainment purposes and let it breed with other horses while it’s here.

Is there an obvious need for these laws? Is there an effective method of enforcement for any of them?

Most importantly, can most — or even a few — Americans be expected to know them?

Solutions to overcriminalization

We need to fix our country’s overcriminalization problem. For that, there are several solutions.

First, Congress should criminalize behavior only when there is clear public safety interest in doing so.

What’s more, it should delegate more authority to the states to decide what behavior is worthy of punishment and what is, like the examples above, rather innocuous.

The same should apply to federal agencies, which produce a litany of regulations without consent from voters.

Congress should also make an effort to amend, replace or eliminate laws that are outdated, unnecessary or simply nonsensical.

Overly harsh sentences have very little impact on reducing crime. As such, sentences should be proportionate to ensure that a person’s punishment fits their crime.

Lastly, we should take into account the mindset of the person accused of having committed a crime. Instituting a standard that establishes that a person acted with criminal intent beyond a reasonable doubt creates a more effective system that takes into consideration good-natured mistakes.

There’s more to criminal justice reform than the criminal code. Read more in our series during Criminal Justice Month!