In an influential law review article, the late Professor Bill Stuntz noted the academic consensus lamenting criminal law’s constantly expanding breadth.  Professor Stuntz wrote that virtually all scholarship in the field “consistently argues that existing criminal liability rules are too broad and ought to be narrowed.”  But, Professor Stuntz continued ominously,

[This] [n]ormative legal argument makes sense on the assumption that lawmakers care about the merits, that the side with the better policy position has a better chance of getting its preferred rule adopted, at least over time. But the legislators who vote on criminal statutes are, or at least appear to be, uninterested in normative arguments.  To take an obvious example: For the past generation, virtually everyone who has written about federal criminal law has bemoaned its expansion. But the expansion has continued apace, under very different sorts of Congresses and Presidents. Normative argument does not seem to have mattered.

One can put the point more generally: American criminal law’s historical development has borne no relation to any plausible normative theory — unless ‘more’ counts as a normative theory.[1]

I’m here today because I do care about the normative arguments regarding our ever expanding criminal state.  I believe federal overcriminalization in particular is detrimental in terms of the financial, social, and human costs it imposes on our country.  And I am far from alone.  In fact, I believe we are seeing increasing, bi-partisan sensitivity to overcriminalization issues and an increasing openness on the part of members of congress to reevaluate federal criminal laws and regulations with an eye towards making common-sense, incremental changes.  In conversations with colleagues, more often than not, I hear agreement that federal overcriminalization is a serious issue.  The Smarter Sentencing Act, which I introduced with Senator Durbin to address issues regarding federal overcriminalization related to sentencing for drug violations already has 23 cosponsors, including six Republicans.  And the House Judiciary Committee recently reauthorized its bipartisan overcriminalization task force, chaired by Representative Sensenbrenner, which has done and I’m sure will continue to do exceptional work on this topic. 

I am optimistic that as conferences like this one shed light on the severity of federal overcriminalization and the potential harms caused by the breadth and scope of federal criminal laws and regulations, the momentum for reform will continue to grow. 

With the time I have today, I want to lay out three principles that guide my approach to federal criminal law—the Constitution’s protection of liberty, the importance of intent or mens rea standards in criminal law, and the role the constitutional principle of separation of government powers should play with respect to criminal law.  I will discuss the evidence and arguments that lead me to believe federal overcriminalization is a serious problem about which something must be done, and I will note measures I believe Congress must take responsibly to address what could otherwise become a crisis of individual liberty. 

Liberty and the Constitution 

Every action government takes—each law or regulation it imposes—results in one degree or another in a restriction or limitation on the liberty of the individuals under its jurisdiction.  This is true to an even greater extent with criminal laws and regulations.  Whether by means of incarceration—which nearly extinguishes an individual’s liberty for a period of time, or by means of the stigma of a criminal conviction—which may also include restrictions on the ability to participate in democracy, criminal sanctions fundamentally alter the relationship between the state and the individual subject to punishment.  In sum, at no time does the government pose a greater threat to individual liberty than when it enacts or enforces criminal sanctions.[2] 

The Constitution recognizes the threat that criminal sanctions pose to individual liberty.  As a general matter, the Constitution’s structural safeguards are designed to prevent Congress from creating too much mischief.  First and foremost, the Constitution enumerates those specific powers the national government shall exercise and reserves to the states and the people all other powers.  In other words, from the outset, the federal government is fundamentally different than state and local governments.  Local government by its nature exercises a general police power to regulate the health, safety, morals and general welfare of its people.  The federal government, on the other hand, is not authorized to exercise a general police power and is instead constitutionally constrained to exercise only those powers expressly enumerated in the Constitution. 

Next, Article I of the Constitution commits “all legislative power” to the Congress.  Regardless of how lenient the Supreme Court may be when reviewing questions of congressional delegation commonly referred to as the non-delegation doctrine, Congress has an independent duty to take the constitutional text seriously.  And the text plainly places the legislative power in Congress and thus limits the manner in which Congress may delegate lawmaking power to administrative agencies to enact laws and regulations, including criminal laws and regulations. 

Specific constitutional provisions confirm the care the Framers intended the government take when crafting criminal penalties.  To avoid a kind of “trial by legislature” whereby Congress might single out an individual in legislation, the Constitution prohibits bills of attainder.  Further to prevent unfair targeting of individuals, as well as to respect the basic concept of notice, the Constitution prohibits ex post facto laws.  And, of course, the Constitution confirms the right of habeas corpus, and specifies the narrow circumstances and the manner in which that right might be suspended.

Despite these structural elements of our nation’s founding document—all of which suggest that the federal government should have only a minimal and careful role to play in the sphere of criminal law—Congress has enacted somewhere around 4,500 federal criminal laws—although no one knows for sure how high the count is, and federal administrative agencies have promulgated another 300,000 some odd regulations that include criminal penalties—but again, no one can be certain of the number.[3]

The solution to this problem—and perhaps to the problem of federal overcriminalization more generally—is fairly straightforward: members of Congress must take seriously their independent duty to give effect to the Constitution’s structural limitations on power.  Congress must stop granting administrative agencies broad delegations of power and must limit any such delegations of power, as well as any other criminal legislation, to the enumerated areas specified in the Constitution.  Where crimes interfere with core functions of the federal government or are truly interstate in nature, Congress has the prerogative and duty to act.  But most federal criminal laws are enacted pursuant to an interpretation of the Constitution’s Commerce Clause that, although blessed by a Supreme Court that has essentially chosen to defer to Congress on the issue, bears no responsible relationship to the text.  State governments have the ability and incentive vigorously to pursue criminal activity.  By staying our hand at the federal level, we will empower them and restore in practice the federalist structure that was so sacred to the Framers and central to the document they drafted. 

Mens Rea

The next principle I will discuss touches on the importance of including a sufficient intent requirement (referred to as a mens rea standard) in criminal laws and regulations.  Mens rea is a well-known concept to lawyers the importance of which, at least in the abstract, garners virtual consensus.  Before and since Edward Coke (“Cook”) famously stated that actus non facit reum nisi mens sit rea—or “an act does not make a person guilty unless their mind is also guilty”—numerous commentators have articulated the significance of the principle of mens rea, its pedigree, and self-evident nature.  For example, in Morisette, Justice Jackson famously explained:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.[4]

But despite what again would seem to be rather overwhelming reasons why the federal government should approach criminal law a certain way, it has consistently chosen to act in another—less sensible—manner. 

The federal code is sprinkled with criminal laws that either do not specify an intent requirement or do not include a sufficient intent requirement, and the federal register contains many similarly deficient regulations.  The Supreme Court has, at least in some circumstances, offered a bit of help by reading a mens rea standard into criminal laws that lack one.[5]  But relying on the Supreme Court alone is plainly insufficient, not only because the Court doesn’t always get it right, but more importantly because as a member of Congress I have an independent duty to get the law right.  This duty includes the responsibility to vote for only those criminal laws that penalize truly criminal conduct.  And I cannot do that unless I am sure the criminal law at issue includes a sufficient intent requirement. 

A bit of historical perspective helps illuminate both how we got to where we are and why the practice of not including intent requirements makes no sense.  In the 18th century British legal system that heavily influenced the American approach, substantive criminal law was largely a product of common law.  As Professor Arthur Leavens has explained, in developing criminal law, judges at common law generally assumed “criminal” meant “morally blameworthy.”[6]  In other words, judges at common law didn’t find an individual guilty of a crime like murder, arson, or assault without a showing of criminal intent or moral blameworthiness because, rather correctly I think, they viewed the concepts of criminality and criminal intent as inseparable. 

The states, which as I have noted have the proper authority to prosecute substantive crime, have largely put into statute the crimes previously punished at common law and by most accounts have done a decent job of including mens rea requirements.  The federal government, on the other hand, has become involved in substantive criminal law by a more circuitous route, and not surprisingly, has done a much poorer job of paying proper attention to mens rea.  Beginning in the late-nineteenth century and with alarming frequency in recent decades, the federal government has extended its jurisdiction beyond the bounds of the Constitution and into the realm of substantive criminal law.  In so doing, the federal government generally has not merely been codifying common law crimes that may have a federal nexus.  Rather, it has been attempting to accomplish a broad regulatory agenda by means of imposing criminal sanctions for regulatory violations.  For example, so-called “public welfare” or “regulatory” crimes, which often lack a significant intent requirement, are justified on the basis that the criminal penalty attached to the offense serves the purpose of communicating the serious nature of the regulatory violation at issue and the widespread harm that may result from such a violation.    

But just because a regulatory violation may cause harm, does not mean that the conduct at issue is morally wrong or criminal.  Indeed, many unintentional actions may result in harm.  But whereas truly accidental arson is not punished as arson under the law (and indeed it would hardly make sense to call a stove fire arson), the accidental violator of a regulatory statute is not given that same benefit of the doubt.  Instead, under current federal law, she is a criminal.  Thus, to cite instances of which many in the audience may be aware, the man who packages lobsters incorrectly, the company that unknowingly imports the wrong kind of wood, and the girl who helps a hurt woodpecker are—due to the federal government’s unnatural expansion into the realm of criminal law—criminals.  

The transition to a criminal regulatory approach has, by its very nature, made criminal many actions that are not malum in se (or self-evidently morally wrong), but rather are malum prohibitum (or criminal only because the law says they are).  It was of course necessary that judges at common law pay attention to mens rea requirements, but even had they not done so, many and perhaps most cases of murder, theft, arson, and other common law crimes naturally included intent (arson is only arson if you meant to do it).  The new types of crimes Congress and executive agencies have created, on the other hand, do not generally by their nature include an element of intent. 

The Congressional and administrative failure to include sufficient mens rea requirements in these new types of malum prohibitum laws and regulatory violations has thus resulted in a kind of double-whammy on our constitutional liberty.  The federal government has criminalized much otherwise innocent conduct.  In some cases it has done so after deliberation because it believed—whether wisely or not, and in many cases I think not—that the potential harm resulting from the conduct merited imposing a draconian sanction.  But in still other cases, the federal government has simply failed to pay much attention to mens rea—perhaps out of the habit of creating new, statutory or regulatory malam prohibitum crimes practically out of thin air with scant if any precedent at common law.  

The Congressional and administrative lack of attention to mens rea is, I think, somewhat ironic in light of the Supreme Court decisions in the early 20th century such as U.S. v. Balint and U.S. v. Dotterweich, which upheld criminal regulations that lacked a mens rea requirement.  In those cases, the Court relied heavily in its analysis on the presumed deliberation Congress gave the regulations.[7]  If only that were the case!  Sadly, in my role on the Judiciary Committee, I routinely encounter draft legislative proposals that include criminal penalties and insufficient mens rea standards.  And I struggle to believe that Congress or administrative agencies have given much thought to the proper mens rea requirement—let alone careful thought—for many of the regulations that carry criminal penalties.  

We must take account of the lack of sufficient intent requirements in federal laws and regulations and ensure that innocent persons are not held criminally liable for otherwise innocent conduct, except where Congress explicitly desires (and has a good reason) that that be the case.  To do this, I believe Congress should pass a new law that provides for a default mens rea standard both for those statutes and regulations that do not already specify such a standard and for those statutes and regulations that may be enacted in the future without specifying a mens rea standard.

Separation of Powers

The third principle I will discuss today relates to the Constitution’s separation of government powers.  In this respect, I would like to address arguments some have made that overcriminalization is not a serious problem because statistics show that broad criminal laws and strict liability regulations are very seldom prosecuted and offenders of such laws and regulations make up an extremely small portion of the federal prison population. 

Not many of us I don’t think, and not many of the Framers I would expect, would be comfortable with a regime that vests complete discretion in the executive branch to prosecute as a crime any conduct it believes is harmful.  And yet, with thousands of criminal statutes and hundreds of thousands of criminal regulations, it seems at times as if Congress is entirely okay with such an approach. 

I believe the rule of law means that individuals have a right to know beforehand the laws to which they are subject and that they will not be made subject to the whims of individual men and women who enforce legal norms in an unpredictable manner.  Yet even under this basic definition, it seems that—to an uncomfortable degree—our federal, criminal administrative state is not a system subject to the rule of law.  Rather, at least at the federal level, we appear to be living in a system of executive discretion whereby that branch of government may pick and choose from an endless array of laws and regulations the rule of the day that they will enforce (or as seems more recently the case, not to enforce).  This state of affairs is the result of Congress criminalizing all or nearly all conceivably harmful conduct, much of which had already been criminalized at the state level. 

As I mentioned, some have noted that less than ten percent of federal criminal convictions per year involve one of the miscellaneous thousands of statutes that are not well known to the public, and less than one percent of those currently in federal prison were prosecuted for federal regulatory crimes.  *But any argument on that basis proves either very little or entirely too much.  If these laws and regulations are not being used, then why do we need them?  And if they are being used to deter (or, as I would contest, to chill) individual conduct, then of what relevance are data about the infrequency of prosecution? 

It seems instead that, to an unfortunate degree:

  • Members of Congress urge enactment of additional, unnecessary criminal laws to garner political credit;
  • administrative agencies use criminal sanctions because they can and because they come to believe that every regulatory violation in their jurisdiction is a big deal that merits serious punishment;
  • and interest groups seek criminal regulations to create obstacles and barriers to entry for competitors. 

None of these approaches in my view offers any real benefit against which we can reasonably compare the costs of overcriminalization—which at a bare minimum involve an immense amount of red tape and heightened chilling of legitimate behavior.   

Concerns related to the Constitution’s separation of powers—and concerns about the executive branch wielding too much power with respect to criminal law—also arise with respect to mandatory sentences.  Here too states have taken a more enlightened approach, with a number of states recently reducing or doing away with mandatory minimums and seeing a continued trend of reduced crime in their jurisdictions.  Nonetheless, at the federal level, we continue to take a different approach—an approach that I believe places too much power in the hands of prosecutors and shortchanges the role of the judiciary and the importance of individualized justice. 

In this respect, it is worth noting that the Bureau of Prisons is operating at nearly forty percent over capacity and half of all federal prisoners are incarcerated based on drug charges.  Taking account of the federal government’s reliance on mandatory minimums in the context of crimes for drug possession and distribution, and making modest, incremental changes to these mandatory minimums, would have a real effect on federal prison overcrowding.  It would also return to communities and households those men and women that—because of a one-size-fits-all approach to sentencing that doesn’t take account of individual circumstances—have already served enough time for the crimes they committed.    

The federal government has a legitimate role in policing some limited forms of crime.  But since 1980, the federal prison population has grown almost 800 percent.  This ballooning prison population mirrors other problems of federal overcriminalization too neatly to be ignored in the larger discussion.  It is difficult for me to believe that crime has increased by 800 hundred percent over the last few decades.  Rather, I believe this increase is due to the federal government’s undue involvement in substantive federal law, combined with the use of rigid sentencing laws that are in need of modest updates.

I am committed to addressing the issues of federal overcriminalization that chill legitimate conduct and threaten individual liberty.  To do so, I believe Congress must enforce the Constitution’s structural limitations on federal power, give proper attention to mens rea standards, and respect the Constitution’s separation of government powers.  I would like to thank the Administrative Conference for inviting me to speak today and wish you the best for the remainder of the workshop.

[1] William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 508 (2001) (the passage ends with: “Criminal law scholars may be talking to each other (and to a few judges), but they do not appear to be talking to anyone else.”).

[2] In the succinct phrasing of Professor Barkow: “The state poses no greater threat to individual liberty than when it proceeds in a criminal action.”

[3] See, e.g., John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. Rev. 193, 216 (1991) (“By one estimate, there are over 300,000 federal regulations that may be enforced criminally.”); Susan R. Klein & Ingrid B. Grobey, Debunking Claims of Over-Federalization of Criminal Law, 62 Emory L.J. 1, 28 (2012) (“An enormous number of new regulatory crimes were enacted in the period 1980-2011, so many that we were unable to count even a fraction of them . . . .”).

[4] Morissette v. United States, 342 U.S. 246, 250-51 (1952).

[5] See, e.g. id.

[6] Arthur Leavens, Beyond Blame—Mens Rea and Regulatory Crime, University of Louisville Law Review, Vol. 46, 2007, at 8-13.

[7] See Balint, 258 U.S. at 254 (“Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided.”); Dotterweich (“Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting. Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless.”).