http://volokh.com/archives/archive_2009_07_26-2009_08_01.shtml#1248668478Radley Balko has an interesting post discussing the ever-expanding
reach of federal criminal law. As he points out, the problem is not
just that federal criminal law has expanded to cover many areas that
are better left to state or local governments. It is that
the scope of
federal criminal law is so broad that the feds could probably find a
crime to pin on almost any American adult. Judge Alex Kozinski and Misha Tseytlin have an excellent essay
entitled "You're (Probably) a Federal Criminal." As they put it, "most
Americans are criminals, and don't know it, or suspect that they are
but believe they'll never get prosecuted." You are a federal criminal
if you have done any of the following: 1. Used any of the hundreds of
substances banned by federal law, including smoking small amounts of
marijuana and the like when you were in college.
The last three
presidents of the United States are all federal criminals under the
drug laws, as are probably the majority of people who went to college
in the last 40 years. Kozinski and Tseytlin cite statistics suggesting
that nearly half of Americans have taken banned drugs at some point in
their lives. The next presidential state of the union address should
perhaps begin with "My fellow federal criminals," instead of the
traditional "My fellow Americans." It would be a great teaching
moment!
2. Underpaid federal taxes (often even inadvertently). As even
sophisticated players like certain Obama Administration officials have
learned, the federal tax laws are often so complex and bvzantine that
it's not hard to violate them by accident. If you do, there are often
criminal penalties attached. 3. Cut corners in your business dealings.
The federal mail and wire fraud statutes are so broad that
virtually sharp business practices can potentially be prosecuted as
a federal crime. Indeed, as Kozinski and Tseytlin explain, the statute
criminalizes actions that deprive employers or customers of "the
intangible right to honest services," which in many cases leads to the
imposition of criminal penalties on professionals who are guilty of
nothing more than doing a poor job (sometimes in cases where their
poor performance didn't cause any harm. 4. Mishandled supposedly
dangerous substances or did a poor job of supervising workers who
handled them. Federal regulations criminalizing such conduct often
[4]punish people even if their actions didn't create any real danger
to life, health or public safety. 5. Violated a wide range of
miscellaneous federal regulations. There are far too many of these to
list. Kozinski and Tseytlin discuss some of them.
One example is the
Lacey Act, which makes it a federal crime to violate a wide range of
American and even foreign fishing and wildlife regulations. They note
a case where a group of businessmen were imprisoned for violating an
obscure Honduran fishing regulation that even the Honduran government
claimed was invalid. The vast scope of federal criminal law is a very serious problem.
Because of it,
most Americans are effectively at the mercy of federal
officials whenever they might choose to come after us. We are used to
thinking of "criminals" as a small subset of the population. In that
happy state of affairs, criminal law threatens only a small number of
people, most of whom have committed genuinely heinous acts. But when
we are all federal criminals, perfectly ordinary citizens can easily
get swept up in the net simply by being unlucky or because they ran
afoul of federal prosecutors or other influential officials.
Overcriminalization also leads to the longterm imprisonment of
hundreds of thousands of nonviolent people (mostly as a result of the
War on Drugs, but many for other reasons as well) who haven't caused
any harm to the person or property of others. Some 55% of all
federal prisoners are nonviolent drug offenders. In addition,
the
ability to convict almost anyone of a federal crime means that federal
officials have wide discretion to punish people who are unpopular,
politically weak, run afoul of the current administration, or
otherwise become tempting targets. Tellingly, the people who get
imprisoned for nonviolent drug offenses are mostly poor and lacking in
political influence, while middle class people who do similar things
are less likely to be singled out by federal prosecutors.
To me, the amazing thing is not that federal prosecutors sometimes
abuse their enormous powers, but that they don't do so far more often.
However, as federal criminal law continues to expand, it will be more
and dangerous to keep relying on their self-restraint or that of the
Department of Justice. These dangers are not unique to federal law. State criminal law has
been expanded too far as well. However, states that overcriminalize
risk losing people who "vote with their feet" either because they
fear imprisonment or because they don't want to pay the high taxes
needed to finance an overgrown criminal justice and law enforcement
system. It is far more difficult to escape the feds. It is, therefore,
no accident that the vast majority of federal prisoners are either
nonviolent drug offenders or people who commit regulatory "crimes,"
while 72% of state prisoners have committed either violent offenses
(53%) or property crimes (19%).
Overbroad state criminal law is a
menace. The fact that we are all federal criminals is even worse.
References
1.
http://reason.com/blog/#135036 2.
http://books.google.com/books?id=Tu5RB6YHf10C&dq=lynch+in+the+name+of+justice&printsec=frontcover&source=bl&ots=51Ya4U8XFt&sig=5RvEjlBhHFCg9J-Cp_BnV0akzV4&hl=en&ei=eR1tSuyVK4GktgeUlpCJDA&sa=X&oi=book_result&ct=result&resnum=1 3.
http://law.jrank.org/pages/1574/Mail-Federal-Mail-Fraud-Act-Challenges-constitutionality-act.html 4.
http://www.foxnews.com/opinion/2009/07/21/heritage-house-law/ 5.
http://volokh.com/archives/archive_2008_06_22-2008_06_28.shtml#1214680020 6.
http://volokh.com/archives/archive_2009_03_29-2009_04_04.shtml#1238895120 7.
http://www.ojp.usdoj.gov/bjs/prisons.htm
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