By Christopher Zoukis
The U.S. House Judiciary Committee is expected to create a panel coined the “Over-Criminalization Task Force of 2013” later this week.  This panel will review the entire federal criminal code with the aim of slashing a number of the crimes contained therein, crimes deemed too technical, too petty, or those which should be relegated to the state justice systems.  The problem faced, as aptly put by CBN News, is that the federal criminal code is so overburdening and overreaching that “every American over age 18 has broken some [federal] law without even knowing it.”

Representative F. James Sensenbrenner, a Republican from Wisconsin, is going to head the panel.  This is not his first foray into criminal justice reform.  Sensenbrenner, Chairman of the Subcommittee on Courts, Intellectual Property, and the Internet, and the former chairman of the House Judiciary Committee, has for the past several sessions introduced the Criminal Code Modernization and Simplification Act, an act which aims to cut the federal criminal code by upwards of a third.  While the act has yet to pass, he plans to reintroduce the legislation next week.  He is steadfast in his belief that something must be done to simplify, clarify, and modernize the federal criminal code.

Representative Bobby Scott, a Democrat from Virginia, will be the ranking Democrat on the panel.  He will be joined by Rep. Raul Labrador, a Republican from Idaho, Rep. Karen Bass, a Democrat from California, and six other representatives; half Republican and half Democrat.  According to Chairman Robert Goodlatte, a Republican from Virginia, the task force will make recommendations which will be brought to the House Judiciary Committee for final disposition.  Newsmax reports, “[T]he task force will operate similar to an official House subcommittee with the ability to call witnesses and conduct investigations.”  As such, the task force will have a measure of authority to locate problems, their causes and solutions.

Chairman Goodlatte had harsh criticism for the way Congress has progressed in past decades as to the creation of federal criminal statutes.  He explained that Congress has created upwards of 500 new federal criminal laws in each decade and that many of them are based on weakened or nonexistent legal standards concerning the potential offender’s intent.  This has resulted in the legal principle of “mens rea,” which states that the offender must have a guilty mind in order for them to be found guilty of a crime, being weakened and diluted until it has become something different and unknown.

According to Rep. Scott, “In the past 20 or 30 years, the number of people in jails and prisons in America has gone up almost ten-fold because every time you turn around, there are new laws.”  Heritage Foundation analyst Paul Larkin, a former DOJ attorney and criminal enforcement agent at the EPA, agrees, saying, “Only when the public gets outraged about this will something happen.  Only then will you see prosecutors not prosecute these cases.  Only then will you see Congress not passing any more [criminal] laws.”

Both Chairman Goodlatte and Rep. John Conyers, a Democrat from Michigan who is the ranking member on the House Judiciary Committee, find fault with Congress for creating federal criminal statutes which should be reserved for the states’ enforcement.  Chairman Goodlatte suggested that the federal government has been encroaching on areas which should be reserved — and are, at times, actively handled — by state criminal justice systems.  Rep. Conyers, an ex-officio member of the panel, exclaimed, “[U]nduly expansive criminal provisions in our law unnecessarily drive up incarceration rates.”

The Over-Criminalization Task Force of 2013 has its work cut out for it.  According to Rep. Scott, “We’ve been warned it’s going to be a working task force and it means we’ll have to essentially go through the entire [federal criminal] code.”  Rep. Sensenbrenner agrees, proclaiming, “Overcriminalization is a threat to personal liberty and [is] an expensive and inefficient way to deal with a lot of problems.”  Many agree with both, hoping that some sort of progress can be had which will help to resolve these most pressing concerns.

According to the Wall Street Journal, “Legal experts estimate there are 4,500 criminal statutes and tens of thousands of regulations that carry criminal penalties, including prison.  The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year.  In recent years, states have reversed years of steady increases by reducing their prison populations while the number of people held at the federal level has continued to climb.  Federal lawmakers and legal experts attribute part of the continuing increase to the rise in criminal offenses and regulations that carry prison time and the creation of laws that don’t require knowledge of wrongdoing.”  Clearly the situation is stark and costly to all involved, taxpayers included.

As reported in the Huffington Post, “Congress has been creating on average 55 new ‘crimes’ per year, bringing the total number of federal crimes on the books to more than 5,000, with as many as 300,000 regulatory crimes.”  Journalist Radley Balko told the Huffington Post, “that doesn’t include federal regulations, which are increasingly being enforced with criminal, not administrative, penalties.  It also doesn’t include the increasing leeway with which prosecutors can enforce broadly written federal conspiracy, racketeering, and money laundering laws.  And this is before we even get to the states’ criminal codes.”

Several recent cases have brought the issue of overcriminalization to the public’s attention.  In one notable case, George Norris, a Texas retiree, was sentenced to a year and a half in federal prison for selling allegedly endangered orchids, something which amounted to a paperwork violation.  Others have faced similar treatment for seemingly innocent or even seemingly protected, conduct.

Michael Salman’s case is another unfortunate one.  Mr. Salman was charged with 67 building code violations for facilitating a Bible study group in his own home.  City officials said that this expression of Mr. Salmon’s Christian faith was not allowed in his own home due to the fact that he occasionally had, on average, 20 to 45 friends and family members over to participate in the Bible study.  He was eventually sentenced to 60 days in the jail, a $12,000 fine, and 2 years of probation for refusing to disperse his Bible study group.  A condition of Mr. Salman’s probation is that he not have more than 12 people in his home at any given time.

When “a person can be arrested and incarcerated for the most innocent and inane activities, including feeding a whale and collecting rainwater on their own property,” according to the Huffington Post, something must be done and it must be done now.  If not, the very validity of the criminal code comes into question.  Why abide by the law if the law is unjust?  What to do with an unjust law?  And, better yet, what is an American citizen even allowed to do on their own property or in the privacy of their own home?  We very well might not know the answer to these questions, and this potential ignorance could result in grandma being arrested for illegally trimming her hedges or the local minister being indicted for having a too large or too charismatic Bible study.

With all of these problems, it’s no wonder that support for the Over-Criminalization Task Force of 2013 is coming from a diverse group of advocacy organizations, including the American Civil Liberties Union, American Bar Association, the Heritage Foundation, the Cato Institute, FedCURE, and the National Association of Criminal Defense Lawyers.

Support of reform aside, the situation has the potential to cause serious public perception problems.  According to Nathan Burney, author of the Illustrated Guide to Criminal Law, “when crimes are too numerous to count . . . when you’re punished, not because what you did was wrong, but simply because the law says so . . . when laws are too vague or overbroad . . . that’s not justice.”

Jim Bovard echoes such sentiments in his text Lost Rights, published nearly 20 years ago.  Therein, Bovard wrote, “America needs fewer laws, not more prisons.  By trying to seize far more power than is necessary over American citizens, the federal government is destroying its own legitimacy.”  And once respect for and faith in the American criminal justice system has been lost — once this legitimacy has been willfully forfeited — faith in the government to protect us and do what is right will be lost too.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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