The Over-criminalization Epidemic

The Need for a Guilty Mind

Requirement in Federal Criminal Law

by
Jason Pye

Introduction

The only power government has is the power to crack down

on criminals. Well, when there arent enough criminals, one
makes them. One declares so many things to be a crime that
it becomes impossible for men to live without breaking laws.
Dr. Floyd Ferris, Atlas Shrugged1

here is an epidemic in the United States, one that is a

creation of irrational lawmakers and busybody bureaucrats,
and it presents a threat to the liberty of virtually every American. The federal criminal code has grown significant over the past
45 years. It is often complex and vague. Many Americans breaking
these laws do not even realize they are doing so.
This epidemic has come to be known as over-criminalization. It is
not just a theory or a concept in the abstract. Real people are being
charged with federal crimes that they were not aware existed, or
laws are being read in a manner that defies congressional intent.
Their lives and livelihoods are ruined in the process.
Bipartisan support is growing around several solutions to these
problems. Those solutions are:
1. Create an easily-accessible, online list of all federal statutes
and regulations carrying criminal penalties, to reduce the
possibility that people will commit crimes without knowing
that they exist;
2. Create a default mens rea standard for federal criminal
statutes and regulations that lack one; and
3. Create a statutory rule of lenity so that cases of ambiguity are
resolved in favor of the defendant.

Ayn Rand, Atlas Shrugged, Random House, 1957 http://www.

amazon.com/Atlas-Shrugged-Centennial-Publisher-printing/
dp/B0086KED6I/
1

The Over-criminalization Epidemic / 1

Problem No. 1
Brett Snider, Esq., Which 3 Crimes Are in the U.S.
Constitution?, FindLaw, July 3, 2013 http://blogs.findlaw.com/
blotter/2013/07/which-3-crimes-are-in-the-us-constitution.
html
2

Wall Street Journal, An Act for the Punishment of Crimes,

July 22, 2011 http://www.wsj.com/articles/SB100014240531119
03461104576462471530874138
3

Edwin Meese, III, The Constitution and Crime, originally

published at The Washington Times, September 15, 2010
4

John S. Baker, Revisiting the Explosive Growth of Federal

Crimes, The Heritage Foundation, June 16, 2008
http://www.heritage.org/research/reports/2008/06/
revisiting-the-explosive-growth-of-federal-crimes
5

Alison M. Smith, Richard M. Thompson, II, Criminal Offenses

Enacted from 2008 2013,Congressional Research Service,
June 23, 2014 https://www.nacdl.org/WorkArea/Download
Asset.aspx?id=34225&libID=34194
6

Ibid.

Hearing Transcript of the House Over-Criminalization Task

Force, Defining the Problem and Scope of Over-Criminalization
and Over-Federalization, Government Printing Office, June 14,
2013 http://www.gpo.gov/fdsys/pkg/CHRG-113hhrg81464/pdf/
CHRG-113hhrg81464.pdf
8

Too Many Criminal Laws & Regulations

he framers of the United States Constitution mentioned only

three crimes in the foundational documenttreason, piracy,
and counterfeiting.2 In April 1790, the First United States
Congress, gathered at Federal Hall in New York City, passed what is
known as the Crimes Act.
The Crimes Actthe text of which fit on to two sheets of parchment, each around 27 inches by 22 inchescodified the offenses
against the newly formed federal government and added a handful
of new offenses, including larceny, manslaughter, murder, and perjury.3 In total, there were 17 federal offenses. They were simple and
clearly defined so that every American could understand them.
At the time of the founding, almost all criminal law punished
conduct that everyone would recognize as wrongfuloffenses like
murder, theft, and burglary, former Attorney General Ed Meese
wrote of the Crimes Act. And virtually all crimes required proof
that the accused had acted with a guilty mindthat is, with the
intent to do a wrongful act.4
In 2008, there were nearly 4,500 federal statutes that carried
criminal penalties.5 This number has since risen. Between 2008
and 2013, an additional 439 new federal offenses were added to
the books.6 The Congressional Research Service, which conducted
the review, noted that there is the possibility that some relevant
statutes were not identified,7 meaning the number of new offenses may actually be higher.
In 2013, the House Over-Criminalization Task Force asked the
Congressional Research Service for a complete review and
accounting of all federal offenses, a task that proved impossible to
accomplish. CRS initial response to our request was that they lack
the manpower and resources to accomplish this task, Chairman
Jim Sensenbrenner said in a June 2013 hearing. And I think this
confirms the point that all of us have been making on this issue and
demonstrates the breadth of over-criminalization.8
The size and scope of federal criminal offenses created by Congress
are only one part of the problem with over-criminalization,
and a relatively small one compared to federal regulations that
carry criminal penalties. Far too often, lawmakers have deferred to
executive-level federal agencies to promulgate regulations to
enforce the laws they create. Through their deference to federal
agencies to develop rules and regulations to carry out the laws

The Over-criminalization Epidemic / 2

they enact, Congress has created a fourth branch of the federal

government, one that has little regard for constitutional limitations
or the people.

It Could Happen to You

I was treated like everybody else, like I was a hardened
criminal. Imagine what I looked like. What you in for? Backed
up toilets.
Lawrence Lewis 9

arry Silverglate hypothesizes that the average American

commits three felonies a day.10 These purported crimes
are committed unwittingly, without malice or intent. Yet,
overzealous law enforcement officials can still prosecute them. To
paraphrase the great free market economist and Nobel laureate
Milton Friedman, we are all criminals now.11
This is not an abstract concept or theory. There are countless
examples of Americans being prosecuted for unwittingly committed crimes under obscure or misapplied laws and regulations.
There is no one in the United States over the age of 18 who cannot
be indicted for some federal crime, John Baker, a law professor
and legal scholar, once said. That is not an exaggeration.12

Gary Fields, John R. Emshwiller, A Sewage Blunder Earns

Engineer a Criminal Record, Wall Street Journal, December 12,
2011 http://www.wsj.com/news/articles/SB1000142405297020
4903804577082770135339442
9

Harvey Silverglate, Three Felonies a Day: How the Feds

Target the Innocent, Encounter Books, September 2009 http://
www.amazon.com/Three-Felonies-Day-Target-Innocent/
dp/1594032556/
10

Milton Friedman, The Economy: We Are All Keynesians

Now, Time, December 31, 1965 http://content.time.com/time/
magazine/article/0,9171,842353,00.html
11

Gary Fields, John R. Emshwiller, Many Failed Efforts to Count

Nations Federal Criminal Laws, Wall Street Journal, July 23,
2011 http://www.wsj.com/articles/SB100014240527023043198
04576389601079728920
12

John Yates, A Fish Story, Politico Magazine, April 24, 2014

http://www.politico.com/magazine/story/2014/04/a-fishstory-106010.html
13

14

Ibid.

Lyle Denniston, Opinion analysis: A fisherman slips through

federal prosecutors net, SCOTUSblog, February 25, 2015
http://www.scotusblog.com/2015/02/opinion-analysis-afisherman-slips-through-federal-prosecutors-net/
15

Below are some examples of people who, unfortunately, have firsthand experience with over-criminalization in federal law:
In May 2010, John Yates, a fisherman, was prosecuted under
Public Company Accounting Reform and Investor Protection
Act, known as Sarbanes-Oxley, a bill that was meant to combat
financial fraud, for allegedly throwing undersized red grouper
overboard.13 A little more than a year later, he was sentenced
for violating the anti-shredding provision of SarbanesOxley, which prohibited the destruction of tangible documents, to 30 days in prison and three years of supervised
released.14 His livelihood was put in serious jeopardy as a result. Fortunately for him, his conviction was overturned by the
U.S. Supreme Court,15 but not until he had already undergone
the trauma of being convicted of a crime and spending years
of his life and significant funds in defending himself.

The Over-criminalization Epidemic / 3

 Alison Capo unwittingly violated the Migratory Bird Treaty Act

when, in June 2011, her 11 year-old daughter, Skylar, saved
a baby woodpecker from the family cat. Her daughter, an
aspiring veterinarian, planned to nurse the bird back to
health. But federal law makes it a crime to take or transport
a protected species, such as a woodpecker,16 from its habitat.
U.S. Fish and Wildlife fined her $535 and threatened a year in
prison.17 After receiving negative media attention, the citation
was withdrawn.18
In March 2007, Lawrence Lewis, an engineer, was prosecuted
for a violation of the Clean Water Act for following established
protocol at the military retirement home for which he worked
to remedy a sewage back up in an area where many vulnerable
residents lived. He believed he diverted the sewage into the
District of Columbias treatment system. Unbeknownst to him,
however, the flow went to a storm drain that fed into Rock
Creek, a tributary of the Potomac River.19 On the advice of
his attorney, who believed a jury trail would end with a harsh
sentence, Lewis accepted a plea deal. He received probation
and a $2,500 fine.20

U.S. Fish and Wildlife Service, Birds Protected by the

Migratory Bird Treaty Act http://www.fws.gov/migratorybirds/
regulationspolicies/mbta/mbtintro.html
16

CBS News, Girl saves woodpecker, but her mom fined $535,
August 4, 2011 http://www.cbsnews.com/news/girl-saveswoodpecker-but-her-mom-fined-535/
17

NBC News, Agency cancels $535 fine for woodpecker saviors

mom, August 2, 2011 http://www.nbcnews.com/id/43986826/
ns/us_news-weird_news/t/agency-cancels-fine-woodpecker-saviors-mom
18

Gary Fields, John R. Emshwiller, A Sewage Blunder Earns

Engineer a Criminal Record, Wall Street Journal, December 12,
2011 http://www.wsj.com/news/articles/SB1000142405297020
4903804577082770135339442

While Metro Transit Police will issue a citation for eating in

the D.C. Metro stations and subway cars, juveniles doing
so were arrested and detained for breaking the law. Ansche
Hedgepeth, a seventh-grade student, was arrested for eating
french fries at the Tenleytown-AU Station on her way from
school in October 2000.21 She was fingerprinted and detained
in a juvenile facility until her parents picked her up. Although
juveniles are now cited, rather than arrested, the D.C. Circuit
Court of Appeals, in 2004, upheld Hedgepeths arrest and
detention.22 The opinion of the three-judge panel for court
was written by then-Circuit Court Judge John Roberts,23 who
now presides over the United States Supreme Court.

19

20

Ibid.

ABC News, Girl Arrest For Eating in Subway, November 16,

2000 http://abcnews.go.com/US/story?id=94999
21

Washington Post, Girl Whose French-Fry Arrest Led to

Metro Policy Change Sets Sights on College, Career, January
8, 2006 http://www.washingtonpost.com/wp-dyn/content/
article/2006/01/07/AR2006010701003.html
22

Judge John Roberts, Hedgepeth v. Washington Metropolitan

Area Transit Authority, FindLaw.com, October 26, 2004 http://
caselaw.findlaw.com/us-dc-circuit/1459242.html
23

Gary Fields, John R. Emshwiller, As Criminal Laws Proliferate, More Are Ensnared, Wall Street Journal, July 23, 2011
24

In August 2010, Eddie Leroy Anderson and his son, Eddie

Joseph Anderson, pled guilty to violating the Archaeological
Resources Protection Act.24 The two had been digging up
Native American arrowheads on federally owned land in Idaho.
The elder Anderson, a former educator who collects artifacts
as a hobby, did not intend to break the law, which requires a
permit to excavate on federal land, and did not realize he was
doing so. Faced with a two-year prison sentence, Anderson
and his son pled guilty and received one year of probation and
a $1,500 fine.

The Over-criminalization Epidemic / 4

 Racing legend Bobby Unser, in June 2007, was convicted for

operating a snowmobile in national wilderness area in violation of the Wilderness Act.25 Unser and a friend, Robert Gayton,
were lost in the midst of a fierce snowstorm near the formers
New Mexico home. Both men experienced problems with their
snowmobiles, forcing them to take shelter in a cave. They
were forced to eat snow to stay hydrated. While the situation
could have had a fatal outcome, fortunately, Unser and
Gayton eventually found a barn and phone to seek help.26
Although they took on Mother Nature and won, they were
unable to escape the law. Unser was required to pay a small
fine, which he unsuccessfully appealed.27
These are only a handful of the examples of over-criminalization
of federal law. Yates case is particularly interesting because,
unlike some of the others, he was successful in his effort to clear
his name.28 In February 2015, the Supreme Court overturned his
conviction, holding that fish could not be considered a tangible
object under Sarbanes-Oxley.29

Jack Thompson, Bobby Unser Convicted on Wilderness

Law, Chicago Tribune, June 13, 1997 http://articles.
chicagotribune.com/1997-06-13/sports/9706130068_1_
bobby-unser-fined-federal-judge
25

Associated Press, Bobby Unser Survives Snowmobiling Ordeal, December 23, 1996 http://www.nytimes.
com/1996/12/23/sports/bobby-unser-survivessnowmobiling-ordeal.html

Although she dissented from the majority in overturning the

conviction, Justice Elena Kagan recognized the problem at hand.
Yates case, she wrote, is unfortunately not an outlier, but an
emblem of a deeper pathology in the federal criminal code.30

26

Testimony of Mr. Robert Bobby Unser before the Subcommittee on Crime, Terrorism, and Homeland Security, Reining
in Overcriminalization: Assessing the Problem, Proposing
Solutions, Government Printing Office, September 28, 2010
http://www.gpo.gov/fdsys/pkg/CHRG-111hhrg58476/html/
CHRG-111hhrg58476.htm

Provide Fair Notice of What Is a Crime

27

Lyle Denniston, Opinion analysis: A fisherman slips through

federal prosecutors net, SCOTUSblog, February 25, 2015
http://www.scotusblog.com/2015/02/opinion-analysis-afisherman-slips-through-federal-prosecutors-net/
28

Adam Liptak, In Overturning Conviction, Supreme Court

Says Fish Are Not Always Tangible, The New York Times,
February 25, 2015 http://www.nytimes.com/2015/02/26/us/
justices-overturn-a-fishermans-conviction-for-tossingundersize-catch.html
29

Justice Elena Kagan, Dissent in John L. Yates v. United

States, February 25, 2015 http://www.supremecourt.gov/
opinions/14pdf/13-7451_m64o.pdf
30

James Madison, The Federalist No. 62, Independent Journal,

February 27, 1788 http://www.constitution.org/fed/federa62.
htm
31

John C. Coffee, Does Unlawful Mean Criminal? Reflections

on the Disappearing Tort/Crime Distinction in American Law,
Boston University Law Review, March 1991 https://litigationessentials.lexisnexis.com/webcd/app?action=DocumentDisplay
&crawlid=1&doctype=cite&docid=71+B.U.L.+Rev.+193&srctype
=smi&srcid=3B15&key=525ef321cad68ef12c01e3decc343705

It will be of little avail to the people that the laws are made
by men of their own choice if the laws be so voluminous
that they cannot be read, or so incoherent that they cannot
be understood.
James Madison 31

ne long-held legal maxim is that ignorance of the law is not

a defense. But today, when there are so many federal criminal offenses, such a maxim has less meaning. Americans
cannot possibly know every one of the approximately 4,500 federal
statutes carrying criminal penalties currently codified into law.

32

John Jessup, Overcriminalization Making Us a Nation

of Felons, CBN News, July 9, 2012 http://www.cbn.com/
cbnnews/us/2012/March/Overcriminalization-MakingUs-a-Nation-of-Felons/
33

More shocking is the best estimate of federal rules and regulations

carrying penalties. There are so many that researchers have had
difficult counting them. In 1991, John C. Coffee noted that there are
over 300,000 federal regulations that may be enforced criminally.32
Today, the estimate exceeds 400,000.33

The Over-criminalization Epidemic / 5

Whereas the [American Bar Association] Task Force in 1998

and Professor John Baker in 2008 reported scholarly estimates
of the number of criminal offenses in federal statutes, both
acknowledged that, at a minimum, there are tens of thousands of
additional criminal offenses in federal regulations, Brian S. Walsh
and Tiffany M. Joslyn explain. Regulatory criminalization thus
has profound implications for the problem of how to ensure individuals and businesses receive fair notice of what conduct can be
punished criminally.34
A first step in helping Americans get a handle on what is and is
not a crime would be a crime counta compilation, in an easily
searchable online database, of all federal statutes and regulations
that carry criminal penalties, what their punishments are, and
what kind of intent (mens rea) is required to violate the law. This
proposed solution is gaining wide bipartisan support in and outside
of Congress, as lawmakers are beginning to appreciate that even
well-meaning and well-educated Americans are often ignorant of
the laws and do not know how to ensure that their conduct is legal
before taking action.

Brian W. Walsh, Tiffany M. Joslyn, Without Intent: How

Congress Is Eroding the Criminal Intent Requirement in Federal
Law, Heritage Foundation, May 5, 2010 http://www.heritage.
org/research/reports/2010/05/without-intent
34

The Over-criminalization Epidemic / 6

Problem No. 2

Strict Liability is the Order of the Day

The contention that an injury can amount to a crime only
when inflicted by intention is no provincial or transient notion.
It is as universal and persistent in mature systems of law as
belief in freedom of the human will and a consequent ability
and duty of the normal individual to choose between good and
evil. A relation between some mental element and punishment
for a harmful act is almost as instinctive as the childs familiar
exculpatory But I didnt mean to, and has afforded the rational
basis for a tardy and unfinished substitution of deterrence
and reformation in place of retaliation and vengeance as the
motivation for public prosecution. Unqualified acceptance
of this doctrine by English common law was indicated by
Blackstones sweeping statement that to constitute any crime
there must first be a vicious will.
Supreme Court Justice Robert Jackson 35

bviously, acts against persons should be punishablesuch

as murder, manslaughter, and theftbut there is a difference between malicious and willful intent to commit
a crime and unwittingly doing so. In short, without intent to
commit an unlawful act, there is no crime; actus rea without mens
rea is not illegal.
Mens rea, the guilty mind, is another long-held legal principle. It
defines the mental state of a person when they committed a crime
to determine their culpability. The guilty mind requirement has its
roots in Roman law, and it was adopted in English common law,36
which provided the basis for the American legal system.

Justice Robert Jackson, Majority Opinion in Morissette v.

United States, January 7, 1952 https://www.law.cornell.edu/
supremecourt/text/342/246
35

Eugene J. Chesney, Concept of Mens Rea in the Criminal

Law, Journal of Criminal Law and Criminology, 1938-1939
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=2828&context=jclc
36

37

Ibid.

It is safe to assert at the outset, that the general concept of mens

rea necessary for criminality was very vague. But with the ever
developing but painfully slow processes of the law, more precise
and discriminating lines were being established regarding the
evil mind necessary when a given set of circumstances was
present, wrote Eugene J. Chesney in explaining the history of the
guilty mind requirement. It was just as logical then as now, that
since every felony involved different social and public interests,
the mental requisites for criminality in one must needs differ from
the other.37

The Over-criminalization Epidemic / 7

There are four different types of mens rea in American law:38

Intent: An individual acts with the purpose and understanding that the end result of their actions will be harmful.
Knowledge: An individual understands that the end result of
their action is likely to be harmful.
Recklessness: An individual understands that their actions
carry a significant risk of harm.
Negligence: An individual is unaware that there actions would
result in harm, but they should have been.
Unfortunately, mens rea requirements in federal criminal code
have been severely eroded. An examination of the 446 criminal
offenses in proposed in the 109th Congress (January 3, 2005 to
January 3, 2007) conducted by the Heritage Foundation and the
National Association of Criminal Defense Lawyers discovered that
57 percent had weak mens rea requirements. Of the 36 proposed
criminal offenses that became law, 64 percent lacked an adequate
mens rea requirement, or had none at all.39 Strict liability has
become the status quo.
National Paralegal College, Model Penal Codes Mens Rea
http://nationalparalegal.edu/public_documents/courseware
_asp_files/criminalLaw/basicElements/ModelPenalCode
MensRea.asp
38

Brian W. Walsh, Tiffany M. Joslyn, Without Intent: How

Congress Is Eroding the Criminal Intent Requirement in Federal
Law, Heritage Foundation, May 5, 2010 http://www.heritage.org
/research/reports/2010/05/without-intent
39

40

Ibid.

The Economist, What were you thinking?, January 24, 2015

http://www.economist.com/news/united-states/21640365criminal-code-expands-intent-often-ignored-what-wereyou-thinking
41

Dr. John S. Baker, Jr. and William J. Haun, The Mens Rea
Component Within the Issue of the Over-Federalization of
Crime, The Federalist Society, July 2013 http://www.fedsoc.org/publications/detail/the-mens-rea-componentwithin-the-issue-of-the-over-federalization-of-crime
42

Exacerbating this problem is the fact that nearly one-quarter of

criminal offenses enacted by the 109th Congress allow bureaucrats,
with little oversight or accountability, to promulgate additional
criminal penalties. This result has significant ramifications. When
Congress enacts a single offense authorizing regulatory criminalization, it effectively attaches criminal penalties to regulations,
rules, and orders that may not yet have been contemplated, let
alone drafted and made into law, the authors of the study noted.
A single criminal offense may serve as the authority for any
number of additional, regulatory criminal offenses.40
Although passed after the time period examined by Heritage
Foundation and the National Association of Criminal Defense
Lawyers, the Wall Street Reform and Consumer Protection Act,
known as Dodd-Frank, is example of a law that lacks a mens rea
requirement.41 The Migratory Bird Treaty Act, by which Ms. Capo
was hassled, also lacks such a provisionany killing of a migratory
bird, even accidental, for example, is sufficient to be convicted of a
crime, and there is no requirement that the person know the bird is
a listed migratory bird under federal regulations.42

The Over-criminalization Epidemic / 8

Professor Baker has noted that because of the erosion of the guilty
mind requirement in federal criminal law there are innocent people
being convicted not because we have the wrong person, but
because they really did not commit a crime.43 Again, an illegal act
without an illegal mindset should not be a crime.
Additionally, Professor Baker explained stark difference between
state and federal criminal laws. [W]hen we look at state criminal
law, it is relatively easy, even though states have added many
non-common law crimes, it is easy because the meat and potatoes
of a local prosecutor, which I was, in murder, rape, robbery, theft,
burglary, that is what we dealt with. And most juries do not have
difficulty figuring out what those crimes are, he said. Indeed, in
most state prosecutions the issue is not whether there was a crime,
the issue is whether the defendant is the person who did it.
In federal law it is just the opposite. The issue is not whether the
defendant did something; it is whether what he did was a crime.
And we know with 4,500 statutes out there, there are plenty to pick
from, he continued, adding, And it is easy to pick up one that has,
if not a lack of mens rea entirely, a confused mens rea.44
The act of a crime, or actus rea, is not enough to determine guilt.
The motive and intent has to be carefully weighed in order to
proved if a person was truly guilty of a prosecutable offense.

Default Mens Rea & the Rule of Lenity

Justice reform has become the cause clbre of conservatives,
libertarians, and progressives, and justifiably so given the fiscal
and human costs of incarceration. Although much of the discussion
to date has been focused on sentencing reforms, alternatives to incarceration, rehabilitative programming to reduce recidivism, and
reentry reforms, over-criminalization is an equally important part
of the discussion. Yet, it has not received nearly as much attention.

Dr. John S. Baker, Jr., Testimony Before the U.S. House

Task Force on Over-Criminalization, July 19, 2013
http://www.gpo.gov/fdsys/pkg/CHRG-113hhrg81984/html/
CHRG-113hhrg81984.htm
43

44

Ibid.

One way federal policymakers could mitigate the epidemic of

over-criminalization is by enacting default mens rea legislation. A
default guilty mind requirement, which would cover offenses that
lack such a provision, would provide a protection for otherwise
law-abiding Americans who have unintentionally broken a federal
criminal law.
Ideally, this would include a uniform, blanket standard of mens rea
that may already exist or could be heightened depending on the

The Over-criminalization Epidemic / 9

criminal offense or proposed criminal offense in question. With this,

courts would have a guide when Congress failed to include a guilty
mind requirement into a law, or when it is excluded from a new
offense. A default standard could mitigate strict liability offenses,
and it would apply to regulations promulgated by bureaucrats.
Given the complexity of federal criminal law and regulatory
offenses, another solution is the rule of lenity, which, like mens rea,
has its roots in common law. This maxim holds that ambiguities in
criminal laws should be resolved in the defendants favor. Although
the rule of lenity has been applied in federal courts, it is seemingly
on a whim.45
Requiring the rule of lenity by statute, along with default mens
rea, will not cure the epidemic of over-criminalization, but these
steps could contain it and reduce the risk it poses to the liberty
of Americans.

Josh Blackman, Does the Rule of Lenity Still Exist?,

JoshBlackman.com, June 9, 2011 http://joshblackman.com/
blog/2011/06/09/does-the-rule-of-lenity-still-exist/
45

Image credit (cover)

Luis Prado, Prisoner
https://thenounproject.com/term/prisoner/20352/

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