The View From Here . . .

You may be a criminal.

A trend that has drawn considerable attention in recent years is the proliferation of criminal offenses, particularly federal offenses, on the books. Indeed, a new book on the subject, Three Felonies A Day: How the Feds Target the Innocent , by Harvey Silverglate (Encounter Books) asserts that it has reached the point that the average citizen easily can run afoul of one or more of the statutes.

This issue has actually drawn attention from both the left and the right. Groups as disparate as the Heritage Foundation, the Cato Foundation, the American Civil Liberties Union and the National Association of Criminal Defense Lawyer (of which Mr. Silverglate is a member) have called attention to overcriminalization.

No one quite knows how many federal crimes there are. According to Mr. Silverglate, the federal criminal statute book lists about 4,000 offenses, up from 3,000 in 1980, but many other criminal offenses are promulgated by administrative agencies and buried in the Code of Federal Regulations. This obviously gives an ambitious prosecutor a great number of weapons to work with, including a number of very vague statutes like wire fraud and mail fraud.

An even bigger problem is the erosion of the notion of criminal intent as a basis of criminal liability. At one time, except for the most minor offenses, prosecutors almost always had to show intent to break the law. However, this requirement has largely broken down and there are numerous “strict liability” crimes that require no such intent. Consider the Lacey Act, which, according to a Heritage Foundation report, makes it a U.S. federal crime to violate the fish or wildlife laws of any nation on earth. Another issue is the attempt to make more and more routine state offenses into federal crime. Because both state and federal prosecutions are permissible for the same offense, this can be an end run against the double jeopardy prohibition against being prosecuted for the same offense.

Of course, one important reason that most of us do not end up in handcuffs and federal custody is “prosecutorial discretion,” the ability of prosecutors to make prudential decisions as to whether criminal sanctions are appropriate in a particular situation. In most instances, this discretion is exercised wisely. Nevertheless, a system that relies so much on the judgment of individual officials is subject to occasional abuse.

Consider the case of Krister Evertson, a fuel cell engineer in Alaska with no criminal record who initially was prosecuted for failing to put a sticker on some cells he shipped. Mr. Everson was acquitted by a federal jury on those charges. However, prosecutors, apparently unhappy with the jury verdict, then charged him on a strict liability offense of “abandoning” fuel cells (considered hazardous waste) because he arranged for their storage when he was in jail during the first prosecution. He was convicted and sent to prison for two years in a pretty clear example of prosecutorial abuse.

A few steps do seem in order. Congress should overhaul the criminal statutes to remove vague or duplicative offenses and restore intent requirements in most cases. (A bipartisan hearing on overcriminalization was held in the House last July.) The Supreme Court should formally adopt the “rule of lenity,” which requires that criminal statutes be interpreted strictly to give fair notice of what is prohibited under the law. Legislators should avoid making federal offenses out of matters adequately covered by state law. Citizens are entitled to greater protection from criminal liability than just the judgment and good will of prosecutors.