Restoring Trust in Government

 I haven't written lately about the over criminalization of the law, but it is a problem I have written about in the past.  But even I had no idea.  Havey Silvergate explains the problem in his book Three Felonies a Day published in 2011. Today, however, Jacob Sullum, has at least put an estimate of the problem on the table in Trump Slams Absurd Rise of Regulatory Crimes at Townhall.com.

After mountain runner Michelino Sunseri ascended and descended Grand Teton in record time last fall, his corporate sponsor, The North Face, heralded his achievement as "an impossible dream -- come true." Then came the nightmare: Federal prosecutors charged Sunseri with a misdemeanor punishable by up to six months in jail for using a trail that the National Park Service described as closed, although it had never bothered to clearly inform the public of that designation.

Sunseri unwittingly violated one of the myriad federal regulations that carry criminal penalties -- a body of law so vast and obscure that no one knows exactly how many offenses it includes. An executive order that President Donald Trump issued last week aims to ameliorate the injustices caused by the proliferation of such agency-defined crimes, which turn the rule of law into a cruel joke.

The Code of Federal Regulations "contains over 48,000 sections, stretching over 175,000 pages -- far more than any citizen can possibly read, let alone fully understand," Trump's order notes. "Worse, many (regulations) carry potential criminal penalties for violations."

How many? As Supreme Court Justice Neil Gorsuch and coauthor Janie Nitze note in their 2024 book on "the human toll of too much law," even experts cannot say for sure, although "estimates suggest that (SET ITAL) at least (END ITAL) 300,000 federal agency regulations carry criminal sanctions today."

The law was originally envisioned to be well known by all. It was also supposed to be pretty easy to follow, things like don't murder, don't steal other people's stuff. But as Sullum's examples indicate, some of these are so obscure that one might think the Feds must have been kidding. But of course, one realizes that these people have no sense of humor. Sullum concludes with this:

Getting a handle on this bewildering situation will require more than prosecutorial restraint, a matter of discretion that is subject to change at any time. Canaparo argues that Congress should eliminate "excess federal crimes," add mens rea ("guilty mind") requirements to provisions that lack them, and recognize a defense for people who did not realize their conduct was unlawful. As he notes, rampant overcriminalization makes a mockery of the old adage that "ignorance of the law is no excuse."

Exactly so. Please go read Sullum's article and write your Congressman that they can do something about this outrage. I would note that at least putting a mens rea provision on each of these provisions might go a long way towards restoring trust in our government.