I’m not sure I’ve ever talked to anyone who would disagree, but all the structural incentives push in the direction of continuing expansion. No one gets re-elected for getting rid of bad laws.
Not only have our laws grown rapidly in recent years; so have the punishments they carry. You might think that federal criminal laws are reserved for the worst of the worst—individuals who have committed acts so egregious that they merit the attention not just of state authorities but of federal authorities, and not just civil fines but potential prison time. But if that’s your intuition, ask yourself this question: How many federal crimes do you think we have these days?
It turns out no one knows. Yes, every few years some enterprising academic or government official sets out to count them. They devote considerable resources and time (often years) to the task. But in the end, they come up short.
In 1982, the Department of Justice undertook what stands as maybe the most comprehensive count to date. A lawyer spent more than two years reading the U.S. Code—at that time, some 23,000 pages. The best the lawyer could say was that there were about 3,000 federal crimes.
Today, the U.S. Code is roughly twice the length it was in 1982, and contemporary guesses put the number of federal crimes north of 5,000. As the American Bar Association has said, “Whatever the exact number of crimes that comprise today’s ‘federal criminal law,’ it is clear that the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades.”
Part of the reason no one can easily count the number of federal crimes is that our federal criminal code was “not planned; it just grew,” as Ronald Gainer, a retired Justice Department official, puts it. We do not have any single place to which people can turn to discern what our criminal laws prohibit. Sure, there’s Title 18 of the U.S. Code, “Crimes and Criminal Procedure.” But in truth, criminal laws are scattered here and there throughout various federal statutory titles and sections, the product of different pieces of legislation and different Congresses. Really, our federal criminal law is, Gainer writes, “a loose assemblage of … components that were built hastily to respond to perceptions of need and to perceptions of the popular will.”
That’s not the only confounding factor, though. Many federal criminal statutes overlap entirely, are duplicative in part, or, when juxtaposed, raise perplexing questions about what they mean. Take fraud. We have a federal mail-fraud law. We have a federal wire-fraud law. We have federal bribery and illegal-gratuities laws. We also have a federal law forbidding the deprivation of “honest services,” though no one is exactly sure what it does (or does not) add to all those other laws about fraud. On top of all this, more new laws criminalizing fraud are proposed during just about every session of Congress.
Once more, Congress’s output represents just the tip of the iceberg. Our administrative agencies don’t just turn out rules with civil penalties attached to them; every year, they generate more and more rules carrying criminal sanctions as well. How many? Here again, no one seems sure. But estimates suggest that at least 300,000 federal-agency regulations carry criminal sanctions today.
If you were to sit down and read through all of our criminal laws and regulations—or at least flip through them—you would find plenty of surprises. You would learn, for example, that it’s a federal crime to damage a government-owned lamp in Washington, D.C.; consult with a known pirate; or advertise wine by suggesting its intoxicating qualities.
The truth is, we now have so many federal criminal laws covering so many things that the legal scholar John Baker suggests that “there is no one in the United States over the age of 18 who cannot be indicted for some federal crime.”
