The Overfederalization of Crime in America

In March 2013, Anthony Brasfield released a dozen heart-shaped balloons in the air as a romantic gesture for his girlfriend. After a Florida Highway Patrol officer spotted the gesture, Brasfield was charged with polluting to harm humans, animals and plants—a third degree felony punishable by up to five years in prison.

While some criminal laws and sanctions are necessary to protect safety and ensure justice, America’s criminal code includes many activities that Americans and business owners have little way of knowing are crimes. As a result, law-abiding individuals and businesses spend innumerable hours and dollars fending off criminal prosecution for actions they never suspected were illegal. There are more than 4,450 federal crimes and 300,000 regulations with criminal sanctions, many of which are duplicative of state criminal statutes and only serve to add confusion [1]. Policymakers at the federal and state levels must en- sure there is a legitimate and real need to incarcerate each offender. Further, federal policymakers should carefully consider whether the issue is better handled by the states.

Overcriminalization has an enormous economic impact on the business community, as every dollar spent on overly burdensome compliance requirements or legal representation is a dollar that cannot be invested to create new jobs or provide better goods and services to consumers. Overcriminalization also poses indirect costs of lost opportunities for entrepreneurialism, as individuals are discouraged from pursuing business interests.

Beyond the costs to businesses, taxpayers foot the bill for investigating, prosecuting and imprisoning nonviolent individuals who did not intend to commit a crime. There are more than 1.5 million Americans under the supervision of state and federal correctional facilities, at a cost of more than $30,000 per prisoner every year [2]. States cannot afford the budgetary costs of imprisoning nonviolent individuals who acted without criminal intentions, and society cannot afford the human costs of incarcerating individuals who do not need to be imprisoned to protect public safety.

New crimes are unwittingly created every day without full consideration of the impact on the rights of Americans, or the cost to taxpayers and the economy. Incarcerating an individual who had no intent to harm or knowledge that his actions were illegal leads to fiscally irresponsible spending and an inefficient and unjust criminal justice system. Policymakers should reserve precious public safety resources by carefully considering what constitutes criminal actions, and leave many of the decisions on what constitutes a crime to state policymakers.

The American Legislative Exchange Council’s new report, Criminalizing America: How Big Government Makes a Criminal of Every American is available at, www.alec.org/publications/criminalizing-america.

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