There is a great article on the subject of overcriminalization published in the Federalist Society’s Engage (vol. 15, 2, Dec. 16, 2014).  This is a topic which has been drawing greater attention in recent years, and even been mentioned by the likes of Justice Antonin Saclia as a growing problem.  At its simplest, it is the tendency to make every offense a criminal offense, from the smallest infraction that no one would imagine to be criminal, let alone illegal, to the largest.  But more than that it has also entailed placing many of these criminal offenses under the umbrella of administrative agencies, whose standards for procedure are much more lax that a regular court’s is.

You are out with your gun and see a tiny rat.  You shoot it, thinking of course that it is a rat.  But this isn’t just any rat.  This is a protected species rat, whose rights rival or even surpass those of an inborn baby.  You had better hope no one saw you do it, because if they did, particularly an EPA employee or someone who doesn’t like you, you could be in for a huge fine and/or even jail time.  And don’t look for a great deal of procedural protection for due process rights from the EPA.  It’s you against the state, in this case, the administrative state.  But even when it isn’t a bureaucracy, it is still a bit odd, to say the least, to be in court over minor acts that in past decades and centuries would have been laughed out of court.  I am guessing that all of us, me included, have unwittingly violated some Federal, state or local law.  It doesn’t matter that you didn’t know, so say the agencies, or that you didn’t intend to violate a law even if you knew what you were doing.  You could be a criminal.  Perhaps you chopped down a tree on your property without permission. Maybe you planted a garden without a zoning exception.  Or maybe you, the operator of a fishing boat, throw a few red grouper (fish) overboard in order to avoid being prosecuted by the Fish and Wildlife agency, which prohibits catching grouper that are “undersized” (I can just imagine a fisherman telling the red grouper that if they are too small, they shouldn’t swim into the net).  And you are charged under the provision of the Sarbanes-Oxley Act dealing with shredding of documents, with: “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . .” (United States Code, section 18, sub-section 1519).  I didn’t know throwing a fish back was the same as doing something with a  document, or that throwing a fish back in order to avoid prosecution was a problem.  If someone tells me I have too many of something or the wrong size, then shouldn’t I simply be allowed to put one back?

The above is a real case, coming before the US Supreme Court.  But that is just one type of overcriminalization, one about using a law intended for one situation to prosecute people in a completely different situation, who would not be expected to know they could be criminally liable (or liable at all) under that law.  The fact is that there are so many regulations with criminal punishments attached that it is almost impossible for ordinary citizens to ever know what to do or avoid.  And if laws and regulations are misapplied or interpreted in wildly exaggerated ways, then it seems the very idea of a rule of law is being eroded.  Law, and especially criminal laws, should be designed to be general, not singling out specific individuals or imposing retroactive punishments.  Laws should not be vaguely defined or penalties overly broad.  Laws need to give proper notice so that individuals actually have an idea what they do is illegal.  In other words laws should be known in advance and generally seen as wrong actions—not acts no one would view as wrong and which cannot be reasonably predicted.  Laws should also be enforced and treated interpreted narrowly in favor of the individual.  Moreover, laws, while allowing discretion, don’t allow too much.  Finally due process limits ensure that the chances of convicting someone in case the above checks aren’t working is minimized.

If I had to single out one abuse above all others, I would say that it is making too many laws that should never be criminal statutes or regulations.  This is mostly a problem of legislatures that fail to do their job, either by passing a criminal law for every complaint or risk or giving entirely too much power to regulatory agencies which they should never have had and which they will tend to abuse.

This is no idle problem.  It can and does affect most of us at one time or another.  Not only that, but such practice cuts against the basic notion of justice expressed in the Bible.  If everything becomes not only illegal but a criminal offense, we are simply expanding the limits of what is ethical and unethical far beyond those contained in the Christian Scriptures.  We all become criminals without actually being responsible in the sense that we know what we are doing wrong or even know what we are doing.  That destroys individual responsibility.