From 3 to 4,500: What laws have you broken today?

Douglas French
Mises Institute

The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. Today, there are an estimated 4,500 crimes in federal statutes, write Gary Fields and John R. Emshwiller for the Wall Street Journal.

Clarence Darrow anticipated the prison nation that America is today a hundred years ago in his book Resist Not Evil. All areas of life have become part of the penal code, with an army of people operating as police, legislators, and the court system to enforce these laws through force and violence. But even Darrow wouldn’t have dreamed that the unauthorized use of the Smokey Bear image, or of the slogan “Give a Hoot, Don’t Pollute” can land a person in federal prison.

Fields and Emshwiller’s frightening article tells about a father and son chased by the Feds for unknowingly digging on federal ground for arrowheads. “The Andersons are two of the hundreds of thousands of Americans to be charged and convicted in recent decades under federal criminal laws—as opposed to state or local laws—as the federal justice system has dramatically expanded its authority and reach.”

The Amercian Bar Association can’t even tally up the federal offenses exactly but believe the number exceeds 3,000. The ABA’s report said “the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades.”

A Justice spokeswoman told the WSJ, that there was no quantifiable number. “Criminal statutes are sprinkled throughout some 27,000 pages of the federal code,” write Fields and Emshwiller.

These crimes of the state’s making are sending 83,000 people a year to federal prison. While the US population has grown 36% in the past three decades, three times more people are going to prison, with immigration and drug violations making up over 60% of the offenses in 2010. The federal prison population has grown eight fold during this period.

Of course much of the public cheers on the increasing prison state.

Roscoe Howard, the former U.S. Attorney for the District of Columbia, argues that the system “isn’t broken.” Congress, he says, took its cue over the decades from a public less tolerant of certain behaviors. Current law provides a range of options to protect society, he says. “It would be horrible if they started repealing laws and taking those options away.”

One wonders if Howard believes 77-year-old race-car legend Bobby Unser deserves to have a criminal record “for accidentally driving a snowmobile onto protected federal land, violating the Wilderness Act, while lost in a snowstorm.” Or whether a Pennsylvania woman who violated a 1998 federal chemical-weapons law tied to an international arms-control treaty should spend six years in prison. The woman spread some chemicals that burned her husband’s paramour on the thumb.

The woman has challenged the law’s constitutionality and the Supreme Court is sympathetic.

During oral arguments in the case, Justice Samuel Alito expressed concern about the law’s “breadth” by laying out a hypothetical example. Simply pouring a bottle of vinegar into a bowl to kill someone’s goldfish, Justice Alito said, could be “potentially punishable by life imprisonment.”

And this is today’s justice system? Darrow wrote in 1902,

The state furnishes no machinery for arriving at justice. [It] has no way of arriving at the facts. If the state pretends to administer justice this should be its highest concern. It should not be interested in convicting men or punishing crime, but administering justice between men. It is obvious to the most casual observer that the state furnishes no machinery to accomplish this result.