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January 8, 2022

"Count the Code: Quantifying Federalization of Criminal Statutes"

SR-count-the-code-charts-page6The title of this post is the title of this fascinating new Heritage Foundation report authored by GianCarlo Canaparo, Patrick McLaughlin, Jonathan Nelson and Liya Palagashvili. Here is the report's summary and "key takeaways":


The authors have developed an algorithm to quantify the number of statutes within the U.S. Code that create one or more federal crimes.  As of 2019, we found 1,510 statutes that create at least one crime.  This represents an increase of nearly 36 percent relative to the 1,111 statutes that created at least one crime in 1994.  Although the algorithm cannot precisely count discrete crimes within sections, we estimate the number of crimes contained within the Code as of 2019 at 5,199.  These findings support the conclusion that the number of federal crimes has increased, while also bolstering concerns that federal crimes are too diffuse, too numerous, and too vague for the average citizen to know what the law requires.


  • This study quantifies the number of federal statutes that create a crime and estimates 5,199 federal crimes within the United States Code.
  • From 1994 to 2019, the number of sections that create a federal crime increased 36 percent.
  • Because many of these crimes apply to conduct no rational person would expect to be a crime, the government is potentially turning average Americans into criminals.

This report, and its useful but brief discussion of the "Relationship Between Federalization of Crime and Federal Prisoners" which includes the graphic reprinted above, got me to thinking about how hard it would be to effectively quantify and assess changes in federal sentencing law over the last 35 years since the passage of the Sentencing Reform Act of 1984.  I was thinking about this challenge because, based on a quick read, I cannot quite tell if the algorithm used in this study picked up only federal statutes that created new crimes or also captured statutes that only changed the penalties for existing crimes (which happens fairly often).

Notably, from 1984 through 2009, most new federal sentencing laws enacted by Congress increased statutory penalties (often in complicated ways).  But the 2010 Fair Sentencing Act and the 2018 FIRST STEP Act serve as recent examples lowering statutory penalties (also in complicated ways).  And then, of course, starting in the late 1980s, federal law was significantly shaped by yearly federal sentencing guideline changes, some of which were directed by Congress.  There have been over 800 guideline amendments, some minor (and mandatory before 2005), others major (and advisory after 2005), some even retroactive.  And, thanks to Apprendi-Booker, ACCA interpretations and other jurisprudential messes, the Supreme Court and lower federal courts have been "changing" federal sentencing law in various significant ways almost continuously over this period.

January 8, 2022 at 03:04 PM | Permalink


I was in DOJ and then the USAO for 25 years. In all that time, I did not encounter a single prosecution for behavior that a normal person would fail to view as criminal (and yes, that includes major drug trafficking, which remains illegal throughout almost the entire world).

Posted by: Bill Otis | Jan 8, 2022 9:56:33 PM


I was thinking much the same, that you often see statements like the above but they so rarely include what the authors would put forward as examples.

I could see cases where a rational person might expect something to be a civil rather than criminal wrong but even then the fact that criminal consequences might attach shouldn't come as any great surprise.

Posted by: Soronel Haetir | Jan 9, 2022 11:56:04 AM

To echo the Hindenburg disaster: "Oh the humanity."
Alas, Thomas Jefferson, his wildest fears have come to pass.
Federal statutes have duplicated state criminal statutes. Pourquoi? Jobs. Patronage. E.g. Ray LaHud and his AUSA son. Prisons for representation in the relevant circuit or district, notwithstanding that prisoners cannot vote nor do they technically reside in the said district.
And what has the DOJ wrought?
Not trial lawyers, but plea “bargainers.” The obscene percentage of pled cases that are pled need no inordinate exposition here.
Who in the federal government started this unremitting pattern of pleas? It worked. More jobs. More prisons.
When the BLM movement gets its feet accustomed, they’ll learn about the plague of overprosecution of black defendants and the blather of a “drug war.” The inflation of drug weight. The super-surveillance because federal monies, i.e., taxpayer monies, are boundless. The entrapment habits. Obstruction charges… AUSA and FBI Agent immunity—they can do no wrong. Thus was born the self-important, sainted clique of self-righteous blowhards. That nutcase, Peter Strzok, with his turned-up nose and pill problem was a case in point.
How could a lifetime DOJ employee be unaware of the practices? Ostrich defense.
The media? These days, they plant only the fed version…so few publicized state cases now that the feds stepped in. Years ago, reporters would call criminal defense lawyers for their take on a case.
The feds love to be in the news. It’s their choice for notoriety and possible promotion or higher office. They’ve been braying about Ghislaine Maxwell about practices and archival “victims” and parties that were di rigueur for a time, however squalid—chicks actually did volunteer and participate for the money. “You work hard for the money.” The feds haven’t bothered going after the big cheeses, the American bigshots who engaged in their kinky habits. Hey, I know that even the sainted, may-his-memory-be-for-a-blessing Ali and his Black Muslim minders had such parties.

Posted by: FluffyRoss | Jan 10, 2022 12:36:48 PM

Fluffy --

"They’ve been braying about Ghislaine Maxwell about practices and archival 'victims' and parties that were di rigueur for a time, however squalid—chicks actually did volunteer and participate for the money."

Do you think it's OK for men in their forties and fifties to have sex with ninth graders?

Do you think that, if they do have sex with kids in middle school and high school, they should be prosecuted?

P.S. It's less that anyone was "braying" about Ms. Maxwell as that a jury of her peers convicted her of several felonies.

Posted by: Bill Otis | Jan 12, 2022 9:48:03 PM

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