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 when I explain that tens of thousands of criminal laws are out there waiting to grab you, listen to John Baker Jr.
“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 is meant to be primarily 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 even has a handle on the number of these laws, it’s obvious that not a soul out there can possibly know what most of them say, and then there is the related issue that many of them 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 put you in jail, cost you a big fine and subject you to public humiliation. Maybe you somehow misappropriated the Smoky Bear or Woodsy Owl character. It could be handcuff time, friend.
A costly example
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 told them 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, careful codification and switching some from criminal to civil penalties only. Before some of this can happen, the government will maybe need to assign people for years and years just to read everything that’s there.