While it is conventional wisdom that the states have primary responsibility for protecting the health, safety, and general welfare of the people through the exercise of their “police power,” the federal government has taken an increasingly expansive view of its role in combating crimes, thereby supplementing—or supplanting—the traditional role exercised by state and local authorities while broadening the scope of what is considered criminal behavior in our society.    

There are nearly 5,000 federal criminal statutes scattered throughout the 51 titles of the federal code. Some of these laws are incredibly broad. Some criminal provisions appear within massive laws passed by Congress, and it is highly debatable whether most members of Congress even read or understood the law that they were passing. The Dodd-Frank Wall Street Reform & Consumer Protection Act, for example, is more than eight hundred single-spaced pages, and contains over two-dozen criminal offenses.

While the existence of too many federal criminal statutes covering too much conduct is a problem, it has helped spawn an even bigger problem: ambiguities in many of these statutes and broad delegations of authority to regulatory agencies have led to the proliferation of regulatory crimes and the concomitant increase in the power of unelected and unaccountable regulators to define what constitutes criminal behavior, and then to enforce those definitions.

Buried within the Code of Federal Regulations, which is comprised of approximately 200 volumes with over 80,000 pages, today there are an estimated 300,000 criminal regulatory offenses. Nobody really knows the total number of regulatory offenses, although the number is immense. As we outline in a chapter of an important new book, Liberty’s Nemesis: The Unchecked Expansion of the State (co-edited by Prof. John Yoo and Dean Reuter), which addresses the consequences of the dramatic growth of the administrative state in a variety of contexts, the result of all this is a vast web of criminalized conduct that creates risks for an unwary public. 

Regulatory crimes pose several problems. First, as is the case with some criminal statutes, some regulations are vague and overbroad. Second, many of these regulations are so abstruse that they may require a technical or doctoral degree in the discipline covered by the regulations to understand them. Third, there are so many regulations located in so many places that lay people and small companies subject to those regulations would be unable to locate them, much less understand them, even if they had the resources to do so. Fourth, the regulations often criminalize behavior that is not obviously morally wrong, so even the most intelligent among the population cannot by reason or common sense determine what behaviors are criminalized. In addition to actual regulations, there are also agency “guidance” documents and “frequently-asked-questions” that agencies sometimes try to pass off as having the same legal effect as regulations.

The infamous Roman Emperor Caligula favored “publicizing” laws by writing them in fine print and posting them on boards affixed to the top of tall pillars. Although that may not be the intent of regulators in the United States today, it is the practical reality for many individuals and small entities, especially those who cannot afford to keep high-priced, specialized attorneys on retainer to advise them. For them, such regulations might as well have been publicized by Caligula; they are equally inaccessible and incomprehensible. Nobody should find himself at risk of imprisonment merely because he cannot afford a lawyer to decipher unduly complex laws and regulations. Needless to say, there is a serious problem when reasonable, intelligent people are branded as criminals for violating laws or regulations that they had no intent to violate, never knew existed, and may not have understood applied to their actions even if they had known about them.

While the relationship between criminal and administrative law is not new, as is the case with Congress, regulators have seemingly succumbed to the temptation to criminalize any behavior that they deem undesirable or which occasionally leads to a bad outcome. There are, however, important differences between criminal laws and regulations that are often overlooked, the most important of which is that they largely serve different purposes. Blurring the two comes at a cost. Criminal laws are meant to enforce a commonly-accepted moral code, set forth in language readily understood by an average person and that clearly identifies the prohibited conduct, backed by the full force and authority of the government. Regulations, on the other hand, are meant to establish rules of the road to curb excesses and address consequences in a complex, rapidly evolving, highly industrialized society, with penalties attached for violations of those rules. While criminal laws are, or at least should be, narrowly drafted to provide “fair warning” to would-be violators, regulations are often drafted using broad, aspirational (and sometimes highly technical) language to provide agencies with the flexibility they need to address health hazards and other societal concerns and to respond to new problems and changing circumstances, including scientific and technological advances.

Each new criminal regulation necessarily gives investigators and prosecutors more power. Today, federal agents working for obscure regulatory bodies such as the U.S. Fish and Wildlife Service and the Food and Drug Administration are given guns and badges and are empowered to enforce regulatory crimes, with little sense of perspective and an unduly broad view of their authority. When an investigator at a regulatory agency with a limited mandate is given such a hammer, every problem starts to look like a nail, and matters that should be handled civilly or administratively end up being handled criminally. Regardless of the good intentions of federal officials, there is a significant difference between regulations that carry civil or administrative penalties for violations and those that carry criminal penalties. People caught up in the latter may find themselves deprived of their liberty and stripped of their rights to vote, sit on a jury, and possess a firearm, among other penalties that simply do not apply when someone violates a regulation that carries only civil or administrative penalties.

The risk is heightened by the fact that many of these criminal prohibitions lack an adequate—or even any—mens rea (“guilty mind”) requirement. Throughout most of Anglo–American legal history, mens rea was considered an essential element of virtually every crime because it ensured that the criminal law ensnared only morally culpable parties. In short, mens rea requires that for someone to be found guilty of a crime, he must have acted with the intent to violate the law, or at least with the knowledge that his conduct violated the law, so that one can justifiably say that the person knew he was defying a law and was indifferent to it. A mens rea requirement protects someone who engaged in accidental or innocent behavior from criminal prosecution, but not from civil liability or administrative penalties.

Congress is currently considering mens rea reform as one component, albeit a very important one, of a broader criminal justice reform package. Although mens rea reform has proven to be somewhat controversial, with some expressing the view that it will make it too difficult to convict individuals and entities who run afoul of the law, it is worth noting that several states, most recently Ohio and Michigan, have passed mens rea reform with overwhelming bipartisan support, and plenty of bad guys are still being successfully prosecuted.   

Absent extraordinary circumstances, it should not be enough that the government proves that the accused possessed “an evil-doing hand”; the government should also have to prove that the accused had an “evil-meaning mind.”  Bad outcomes will, of course, occur from time to time whether through willfulness, negligence or sheer accident; the intent, however, of the actor ought to make a difference in whether that person is criminally prosecuted or dealt with, perhaps severely, through the civil or administrative justice system. After all, as future Justice Oliver Wendell Holmes, Jr. once cleverly observed, “even a dog distinguishes between being stumbled over and being kicked.”

Meaningful mens rea reform would go a long way toward ameliorating the serious and growing problem of unknowing and unwitting individuals and entities violating obscure or unknowable regulations and being branded as criminals.  Whenever that happens, the public’s respect for the fairness and integrity of our criminal justice system is diminished, and that is something that should concern everyone.