Regulatory Reform

New Report Explains How Big Government Makes a Criminal of Us All

By: Theresa Boyd

An Oregon landowner spent a month in jail and received a $1500 fine for collecting rainwater on his property. A Kentucky couple, who had all the necessary permits to run their caviar business, was sentenced to three years probation and a $5,000 fine for setting their net on the wrong side of the river. A Michigan mom faced a 90-day jail sentence for watching her friends’ kids while they waited for the school bus. These are just some examples of lives that have been disrupted by the commitment of acts that are not criminal by nature.

Today, there are 4,500 criminal statutes in the U.S. code and 300,000 additional regulations with criminal consequences written by unelected bureaucrats. That provides unknowing citizens hundreds of thousands of opportunities to break the law in ways that are not intuitively wrong. The American Legislative Exchange Council’s newest State Factor, “Criminalizing America: How Big Government Makes a Criminal of Every American,” explains the injustice that springs from questionable laws and offers solutions to make America’s criminal justice system more effective.

One safeguard would be to require proof that an accused person intentionally violate the law. In order to be convicted of murder, a court must find that the accused caused the death of the victim and intended to kill or cause serious bodily injury to the victim. However, to convict someone of violating the Clean Water Act, a prosecutor must only show that the accused has committed an infringement of the Act. Therefore, a person who did not know their conduct was illegal, or whose conduct was accidental, could find themselves facing criminal charges.

The problem with most of these federal crimes is that they are not inherently evil. Some conduct, such as murder and robbery, is universally deemed immoral; however, it is only illegal to collect rainwater in Oregon because lawmakers have defined it as such. As lawmakers and bureaucrats criminalize more everyday activities, it becomes increasingly easier for Americans to commit a crime for which they are not morally blameworthy.

Overcriminalization—the rapid growth in both the number and breadth of criminal statutes—does nothing to improve public safety. Outrageous fines and prison sentences cannot deter people from breaking these laws because most Americans are not even aware of them until they accidentally cross the government-defined line. Nor does this system of vague laws and harsh punishments keep truly dangerous people out of society since the wrong-doers never acted with criminal intent.

In the end, overcriminalization leads to injustice and waste. American citizens are forced to spend time and money fighting charges for conduct that they never dreamed could be illegal. They pay fines and legal fees, lose property and spend time in jail. Often their lives are blemished with a criminal record. Resources are diverted from protecting society from those who really are dangerous as taxpayer dollars are wasted on the prosecution and incarceration of guiltless individuals.

Lawmakers should consider criminal intent requirements, so that accused persons can only be convicted if they knowingly break the law. Model policy passed by the Exchange Council, the “Criminal Intent Protection Act,” does just that. Additionally, to ensure that lawmakers do not add to the list of vague regulations, they should ask themselves if the conduct they are considering making illegal really should be a crime and what punishment would be appropriate.

In the land of the free and the home of the brave, no one should have to fret about being helplessly trapped by an ill-constructed criminal code. The government is supposed to protect its citizens from true criminals, but now policymakers must protect citizens from their government.

In Depth: Regulatory Reform

In his first inaugural address, Thomas Jefferson said that “the sum of good government” was one “which shall restrain men from injuring one another” and “shall leave them otherwise free to regulate their own pursuits of industry.” Sadly, governments – both federal and state – have ignored this axiom and…

+ Regulatory Reform In Depth