Streamline the Criminal Code
Buried in the pages of the voluminous United States criminal code are laws that seem, to put it plainly, a bit absurd. It is, for example, a federal crime to sell onion rings that look like normal onion rings but are, in fact, made of diced onions. You could also get nailed by the feds for corresponding with a known pirate, skydiving while drunk, or hosting a bingo game that lasts more than five hours. Author Mike Chase documented scores of such eyeroll-inducing code sections in his amusing book, How to Become a Federal Criminal in America: An Illustrated Handbook for the Aspiring Offender. He also noted:
“Unfortunately, if you were hoping to learn all the ways that you could possibly become a federal criminal in America, this book can’t help you. In fact, no book can. Lawyers with the Department of Justice once tried to count all of the federal crimes on the books and gave up.”
Studies estimate that there are nearly 5,000 federal statutes and as many as 300,000 regulations that can subject people to possible criminal penalties. But, as Chase wrote, no one really knows. The first federal criminal code, codified by Congress through the Crimes Act of 1790, enumerated 23 federal offenses and established punishment for each. Today, tens of thousands of pages of statutes and regulations comprise an incredibly complex patchwork of federal crimes. While sentencing and reentry policy have dominated much of the criminal justice reform conversation, the expansion of federal criminal law has quietly continued. Critics contend federal criminal statutes should not be used to address so many societal problems and that they unnecessarily duplicate many laws in the states. Compounding problems caused by such “overcriminalization” is the lack of a consistent mens rea standard. A Latin phrase often translated as “guilty mind,” mens rea refers to the concept that intentional wrongdoing, not accidental conduct, should be required to punish someone for a crime. Many federal laws are simply silent or lack a sufficient mens rea requirement. The Task Force believes that mens rea reform coupled with a comprehensive culling of the federal code can guard against excessive criminalization and confusion. Despite the humor of oddball federal statutes—don’t willfully make an unreasonable noise at the Pentagon—the unwieldy state of the U.S. criminal code is no laughing matter. It undermines our common understanding of and respect for the law. It must join the conversation on criminal justice reform.
The U.S. Sentencing Commission should undertake a comprehensive review of the U.S. Criminal Code, similar to the Base Realignment and Closure process, to identify unnecessary and duplicative federal criminal laws and those that lack appropriate and consistent mens rea elements and proportionate statutory sentencing ranges, and to gather all federal criminal laws into a single title of the U.S. Code organized in a way that is both useful to practitioners and understandable by the general public.
- Congress should direct and fund the Commission to perform this review, which should be completed within three years following the initial mandate from Congress.
- Congress should vote up or down on the full slate of Commission revisions.
- Subsequent reviews and reports to Congress should occur not less than every five years thereafter.
Clark, William N. and Artem M. Joukov. “The Criminalization of America.” The Alabama Lawyer, vol. 76, 2015, p. 25. https://issuu.com/alabamastatebarassociation/docs/the-alabama-lawyer-july-2015-reduce The sheer breadth of the federal criminal code has garnered castigation from justices on the U.S. Supreme Court; in one case, the late Justice Antonin Scalia noted, “[W]hat kind of a mad prosecutor would try to send this guy up for twenty years [for throwing three grouper into the Gulf of Mexico]?” In a book review, the late Justice John Paul Stevens commented that the “proliferation and breadth of criminal statutes has given prosecutors and the police so much enforcement discretion that they effectively define the law on the street.”
Luna, Erik, “The Overcriminalization Phenomenon.” American University Law Review, vol. 54, no. 3, 2005, p. 703. https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1707&context=aulr Each year the federal criminal code expands with the addition of new crimes, increased sentences, and “novel applications of the criminal justice system.” These additions have included the criminalization of selling perfume or lotion as a beverage, training bears to wrestle, disturbing congregations of worship, and spitting in public places, to name a few. An account of overcriminalization requires an understanding of its causes, including the influence wielded by interest groups, political pressures, and the excising of certain “vices” from communities. The solutions to this problem are neither simple nor uniform. Reform demands judicial action in the form of culpability restraints; reviewing charging and sentencing decisions; and a reinvigoration of the harm principle. It also requires the depoliticization of the criminal code and a call for individualism and its concomitant rights and protections.
Malcolm, John. “Morally Innocent, Legally Guilty: The Case for Mens Rea Reform.” Federalist Society Review, vol. 18, 7 Sept. 2017. https://fedsoc.org/commentary/publications/morally-innocent-legally-guilty-the-case-for-mens-rea-reform This article provides an in-depth look at the concept of mens rea. It suggests that too few federal laws contain adequate mens rea standards and urges Congress to take up mens rea reform. “Proof of mens rea—a guilty mind—has traditionally been required to punish someone for a crime because intentional wrongdoing is more morally culpable than accidental wrongdoing; our justice system has usually been content to evaluate accidents that injure others as civil wrongs, but criminal punishment has been reserved for people who do bad acts on purpose … Mens rea reform, if Congress implements it, would constitute an important step toward restoring justice by preventing criminal punishment … Ensuring that there are adequate mens rea standards in our criminal laws is one of the greatest safeguards against overcriminalization—the misuse and overuse of criminal laws and penalties to address every societal problem … Mens rea reform is necessary to ensure that our criminal justice system punishes in accordance with commonly held beliefs about right and wrong, which is important if it is to maintain its legitimacy in the eyes of all Americans.”
Congressional Research Service. Base Closure and Realignment (BRAC): Background and Issues for Congress. 25 April 2019. https://fas.org/sgp/crs/natsec/R45705.pdf The Base Realignment and Closure Commission (BRAC) evaluates the viability of military installations and makes recommendations to Congress on bases to be closed or realigned. BRAC commissioners are appointed by the President but recommendations are implemented by Congress. Congress has 45 days to reject the recommendations in their entirety or implementation begins.