Overcriminalization and Mens Rea Must be Addressed
With the explosion in the number of criminal statutes and criminal regulations, it is particularly difficult for an individual to know what conduct has been deemed criminal or noncriminal. In addition, each year lawmakers at the federal, state and local levels pass criminal laws that do not prescribe a standard of culpability. Furthermore, many of these crimes punish conduct that is not morally blameworthy. As a direct result, innocent, noncriminal conduct carries potential criminal penalties.
For example, unauthorized use of Smokey the Bear’s image carries a potential prison sentence. In addition, so does shipping undersized lobsters in plastic bags instead of cardboard boxes. These acts should not be criminalized, as there are other remedies available to prevent such conduct. In addition, the stigma of a criminal conviction on an individual is quite burdensome.
The rise in the number of criminal offenses has paralleled the growth of the administrative state. The size of government agencies has expanded over the last few decades and so have the number of criminal offenses. There are roughly 5,000 federal criminal states – laws passed by Congress and signed by the president – and approximately 300,000 criminal regulations. The regulations are largely written by unelected bureaucrats, who are accountable to no constituency. In essence, if conduct carries a potential prison sentence, those laws ought to be written by individuals who can be voted out of office – not unelected bureaucrats.
The Time to Hesitate is Through: The Number of Laws Criminalizing Innocent Conduct is a Touch Too Much discusses overcriminalization, mens rea and instances where states and the federal government have sought to address these issues. Additionally, it raises separation of powers issues that have allowed for the growth of the administrative state. Finally, the paper offers solutions for the states and the federal government to fix the problem of overcriminalization.