Gotcha! What you’re doing right now could be criminal.

(Centennial Fellow) Figuring on going somewhere? Stay home and remain seated, because the federal government may otherwise throw you in jail. If you think I am kidding, listen to John Baker talking about the tens of thousands of laws waiting to grab you.

“Congress has made every American potentially indictable for a federal crime,” the law professor said to me as he explained the threat that began growing when Richard Nixon was in the White House. This president wanted a war on crime and got that and a lot more. As decades passed, liberals and conservatives joined forces in passing all kinds of criminalizing measures, often without knowing what the laws actually said.

They did this despite the fact that criminal law was meant to be a state function. The Constitution outlined just three federal offenses—piracy, treason and counterfeiting—but Congress has added more than 4,500 statutes to the list since then, and that’s without counting the arduous, undying assistance of bureaucrats.

These happily busy public servants have squeezed in so many additional federal offenses on some 27,000 pages of the U.S. Code that groups trying to calculate the total have given up, including the U.S. Justice Department, the American Bar Association and the Congressional Research Service.

Given that no one can do more than rough estimates of how many of these laws exist, it’s obvious that not a soul can possibly know what most of them say, and then there is the related issue that many allow conviction with no proof of criminal intent, known by the Latin phrase, “mens rea,” or “evil–meaning mind.”

Some of these laws are big–time with big–time sentences, but are so vague you can step off the cliff thinking you’re on a legal bridge, and others are trivial, everyday stuff that can still can put you in jail, cost you a big fine and subject you to public humiliation. Maybe you somehow misappropriated the Smoky the Bear or Woody the Owl character. It could be handcuff time, friend.

Chances are it won’t happen to you, but it could even though you had absolutely no idea you were doing anything wrong and are far removed from entertaining criminal thoughts.

Consider Bobby Unser, the race car driver, who was out snowmobiling with a friend and got lost.

They abandoned one snowmobile, went in the direction of possible help and then struck out on foot, eventually finding their way to safety after two days of facing death.

Federal officials wanted to know where Unser lost his snowmobile, and he made a guess and they said, well, that means you were on protected federal land and broke the law and face a $5,500 fine and six months in jail.

He fought back with the help of several large organizations that think highly of justice, but even though the government never found the snowmobile, he had failed to prove himself innocent and was declared guilty.

He was fined $75, but this was after he and those groups had spent as much as $800,000 fighting the case and the government spent something like $1 million, according to his version on an online video.

The Wall Street Journal has been running a series of articles on this over–criminalization, and a number of groups are doing their best to get more politicians involved, among them the Federalist Society (with which Baker is associated), the American Civil Liberties Union, the Heritage Foundation and the Washington Legal Foundation.

Solutions? Some of those suggested are outright repeal of many of the laws, rewriting others, making some nothing more than civil penalties and careful codification. There is an obvious problem. If sheer counting is a near impossibility, how long will reform take?

One thought on “Gotcha! What you’re doing right now could be criminal.

  1. Joy Overbeck

    Thanks Jay –
    Increasingly it seems like our gubment's sole function is to persecute those who it's supposed to serve — unless you're a free-enterprise-hating, America-mocking, entitlement-demanding scruffbag camping out in a big-city park, and then you're hailed as a brave lover of liberty. My Swedish grandparents who arrived here at 16, amazed and grateful for the opportunities and freedoms this nation gave them, would be horrified.

    Reply

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