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November 29, 2016

"Why Trump needs to roll back criminal penalties for noncriminal conduct"

The title of this post is the headline of this notable commentary authored by Ronald Lampard, the director of the Criminal Justice Reform Task Force at the American Legislative Exchange Council (ALEC). Here are excerpts:

Unauthorized use of Smokey the Bear's image could land an offender in prison. So can unauthorized use of the slogan "Give a Hoot, Don't Pollute." While one may think the government would never initiate a criminal prosecution for either of these two "criminal" acts, there have been numerous examples of individuals being prosecuted under federal law for conduct that should not be criminalized.

For example, Eddie Anderson of Idaho took his son camping in the wilderness, searching for arrowheads. They didn't find any, but they were searching on federal land, which is prohibited by the Archaeological Resources Protection Act of 1979.  They both faced a felony charge, punishable by up to two years' imprisonment before they pleaded guilty to a misdemeanor and were fined $1,500 each and placed on probation for a year.

Some of these criminal offenses are contained in federal statutes, which prescribe an estimated 4,500 crimes, according to a study by retired Louisiana State University law professor John Baker.  To help put that number in perspective, the Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting.  Around the turn of the 20th century, the number of federal criminal statutes was as low as dozens. Essentially, over the last hundred years, federal statutes carrying criminal penalties have grown at an exponential rate.

The number of criminal statutes — laws passed by both Houses of Congress and signed into law by the president — is dwarfed by the number of regulations carrying criminal penalties. The total number of these regulations is difficult to count, however, it is estimated to number roughly 300,000. Perhaps most disturbingly, these "criminal regulations" are written by unelected bureaucrats, yet still carry the force of law.

In order to stem the explosion of criminal regulations, President-elect Trump can begin the process of removing said regulations.  Trump says in his first 100 days he wants to see two regulations removed for every one regulation created.  Since these regulations were largely written by unelected bureaucrats who work for the executive branch, the Trump administration could start immediately....

Certainly, some of these regulations ought to deter certain conduct. However, this can be accomplished by making the penalty civil or administrative....  As John Malcolm at the Heritage Foundation said, "There is a unique stigma that goes with being branded a criminal. Not only can you lose your liberty and certain civil rights, but you lose your reputation — an intangible yet invaluable commodity … that once damaged can be nearly impossible to repair.  In addition to standard penalties … a series of burdensome collateral consequences that are often imposed by … federal laws can follow an individual for life."

The federal government should proscribe criminal penalties only for conduct that is inherently wrong in order to protect public safety.  Criminal statutes serve a crucial purpose in preserving law and order and establishing the rule of law.  However, preserving law and order need not come at the expense of criminalizing conduct such as nursing a woodpecker back to health or shipping undersized lobsters in plastic bags instead of cardboard boxes.

Trump has a tremendous opportunity to reduce the number of actions criminalized by federal law. Such action would serve all Americans well and would be a great victory for both law and order and individual liberty.

November 29, 2016 at 08:20 AM | Permalink


Criminal regs seem a great target to me, as well as men's tea reform.

Posted by: Bryan | Nov 29, 2016 9:56:29 AM

That would be *mens rea*. Thanks, Obamaphone!

Posted by: Bryan | Nov 29, 2016 9:57:28 AM

I can see about the Smokey the Bear and don't pollute examples but I fail to see how the archaeological bit is overreach (I see felony charges being too much under the described circumstances but not the mere fact that the conduct is criminal). It's that whole "if everyone did it" thing. And if you are going to be making this kind of pitch you need to make it with cases that are not nearly so marginal.

Posted by: Soronel Haetir | Nov 29, 2016 10:10:02 AM

After him tweeting flag burning maybe should be grounds to lose your citizenship, good luck with that. Seriously, what the heck does "criminal penalties only for conduct that is inherently wrong in order to protect public safety" mean?

Excessive penalties are bad, sure, but why shouldn't interfering with protected species or the like be a "crime" at all in all cases? And, what is the net difference really, since "civil" (ask sex offenders, a major concern of this blog) can entail significant burdens, down to loss of livelihood (e.g., not being allowed to have a license to fish or whatever). Anyway, "inherently wrong" and "protect public safety" really doesn't help me much.

Posted by: Joe | Nov 29, 2016 10:31:01 AM

The arrowhead story sounded odd to me so I googled. Turns out they were not just looking but were caught digging holes and had found some pieces of arrowheads. How many holes would there be on federal lands if this was allowed. $1500 seems fair. http://idahoreporter.com/9838/father-and-son-plead-guilty-to-illegally-digging-up-arrowheads/

Posted by: Andrew | Nov 29, 2016 11:52:09 AM

Thanks Andrew.

This is just one case of people who "dug several holes" and eventually they got charged with a misdemeanor. Protecting federal land and antiquities is a major cultural concern alone. I don't necessarily think something has to be "inherently wrong" or a threat to "public safety" to be subject to the criminal law. But, safeguarding land and culture is quite important to many people, and for some is seen as a basic "wrong."

And, again, why would a civil fine be superior there especially if it came with special conditions? You can lose 'civil rights' that way too. And, if you want their record expunged after a their probation term is up etc.? Might very well be reasonable.

Posted by: Joe | Nov 29, 2016 12:29:08 PM

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