Overcriminalization of Conduct, Overfederalization of Criminal Law, and the Exercise of Enforcement Discretion

The Issue

The American Bar Association’s (ABA) Task Force on the Federalization of Crime observed in 1998, “So large is the present body of federal criminal law that there is no conveniently accessible, complete list of federal crimes.”1  As of 2007, there were more than 4,450 offenses that carried criminal penalties in the United States Code.2   In addition, an estimated 10,000, and possibly as many as 300,000 federal regulations can be enforced criminally.3  Despite Supreme Court cases in the last 15 years cautioning against the federal assumption of plenary police power,4 Congress continues to introduce new criminal legislation.  Recent studies demonstrate that from 2000 through 2007, Congress created 452 new federal crimes—that is, on average, one new crime a week for every week of every year.5 

This over-federalization of criminal law is often a product of political considerations, wherein the response to a newsworthy problem is the introduction of federal legislation containing new criminal provisions or increased criminal penalties.  So routine is this response that practitioners, academics, and even the Department of Justice (DOJ) have struggled to document the actual number of federal statutory offenses.6

The explosive growth of the federal criminal code in recent decades is noteworthy on its own, but it is only one part of the problem.  Many of these new offenses do not punish conduct that is universally considered to be “criminal.”  This is because an increasing number of statutes lack an adequate criminal intent requirement to protect innocent people who act without intent to violate the law or knowledge that their conduct was illegal. For example, Abner Schoenwetter, a 64-year-old sea food importer with no criminal record, served six years in federal prison because he purchased a shipment of lobsters that were the wrong size and in the wrong packaging under Honduran treaty regulations.7  The absence of strong criminal intent requirements weakens protections for due process and civil liberties, especially where Congress criminalizes conduct involving regulatory violations and highly technical prohibitions.  Further, vague criminal laws, coupled with an expanding list of federal crimes, have led to abuses by the executive branch in the exercise of its prosecutorial discretion.

Enforcing this unwieldy criminal code has contributed to a backlogged judiciary, overflowing prisons, and the incarceration of innocent individuals who plead guilty not because they actually are, but because exercising their constitutional right to a trial is prohibitively expensive and too much of a risk.8  This enforcement scheme is inefficient, ineffective, and maintained at tremendous taxpayer expense.