American Elephants

Overcriminalization: You May be the Next Felon! by The Elephant's Child

For decades, lawyers, academics and government officials have attempted to count the total number of federal criminal laws. The best attempt was way back in 1982, when Justice Department lawyers undertook the effort as part of a long and ultimately failed campaign to persuade Congress to revise the criminal code, which by the 1980s was scattered around among 50 titles and 23,000 pages of federal law. They were trying to expose the idiocy of the system.

The effort spanned two years, and in the end produced only an educated estimate of something around 3,000 criminal offenses. Subsequent efforts by computer searches didn’t produce a specific estimate.

John Baker, a retired Louisiana State University law professor who has tried just counting the number of new federal crimes created in recent years said:

There is no one in the United States over the age of 18 who cannot be indicted for some federal crime.  That is not an exaggeration.

Even those who have never attended an auto race, like me, are probably familiar with the name Bobby Unser, three-time winner of the Indianapolis 500.  He also survived sub-zero blizzard conditions in the mountains and faced down every challenge until he encountered the U.S. Forest Service.

Uh huh.  Eddie Leroy Anderson of Craigmont, Idaho is a retired logger, a former science teacher and now a federal criminal.  In 2009, the 68 year-old Mr. Anderson and his son went hunting for arrowheads near a favorite campground of theirs.  They didn’t find any arrowheads that day, but unfortunately they were on federal land.  The law, the Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.

The two men, faced with that reality pleaded guilty to a misdemeanor and got a year’s probation and a $1,500 penalty each.

The Andersons are two of hundreds of thousands of Americans who are charged and convicted in recent decades under federal criminal laws — as opposed to state or local laws — as the federal justice system has dramatically expanded its authority and reach.  As the laws have increased,  it has become ever easier for Americans to end up on the wrong side of the law. Many laws set a lower standard for conviction than in the past. Prosecutors don’t necessarily need to show that the defendant had criminal intent.

The first federal criminal statute, signed into law April 30, 1793 listed just a few offenses: treason, counterfeiting, piracy and murder, maiming and robbery in federal jurisdictions.  It’s easy for legislators to respond to the cry of  ‘We need a law,” and much more difficult to pause and realize that perhaps we don’t really need another law. And when Big Government grows so bloated and intrusive that ordinary citizens become federal felons over something that they had no conception could even be a law— can we whittle down the size of government and particularly the intrusiveness, or are we doomed to all end up in prison?

There are many organizations working on trying to remedy the situation, and several authors have detailed the problem.  If you want to see if you are at risk:

One Nation Under Arrest by Paul Rosenzweig and Brian W. Walsh
Three Felonies a Day: How the Feds Target the Innocent by Harvey Silvergate
Go Directly to Jail: The Criminalization of almost Everything by Gene Healy

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