Wednesday, September 28, 2011

More Crimes, Less Guilt?

In today's battles over the size (and cost) of the federal government, we shouldn't ignore the criminal justice system -- or what is considered a federal crime.  Over the years, the list of federal crimes has grown, even adding traditionally state-level crimes to the federal criminal code.  For example, street-corner drug selling -- which could be (and often is) ably handled by the local police -- can land a person in federal prison, often with a decade-long mandatory minimum sentence.

And there are entire new crops of federal crimes springing up from unexpected places:  thousands of federal regulations that cover everything from protecting the environment to running a small business.

The bad news:  you could break one of these regulations without even knowing it and face criminal charges and even federal prison time for it.  

This "gotta know" requirement is called mens rea in legalese, and it's the subject of this lengthy article from The Wall Street Journal.  It asks a simple question:  should a person know they're breaking a law before they can be sent to jail for it?  But if the answer is yes, is that fair when there are more federal laws than anyone could possibly know about?
Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s. ...
Under English common law principles, most U.S. criminal statutes traditionally required prosecutors not only to prove that defendants committed a bad act, but also that they also had bad intentions. In a theft, don't merely show that the accused took someone's property, but also show that he or she knew it belonged to someone else.
Over time, lawmakers have devised a sliding scale for different crimes. For instance, a "willful" violation is among the toughest to prove.
A big part of this "overfederalization" problem is poorly-drafted laws from Congress.  Another part of the problem is that some of this stuff shouldn't be a federal crime in the first place.  And from a sentencing standpoint, the worst problem is when Congress slaps a mandatory minimum prison term on these offenses.

Federal prisons are overcrowded -- dangerously so.  That precious bed space costs taxpayers a fortune.  We should use it wisely, for offenses that are really crimes and are really federal (not state) crimes.