Overcriminalization is in the Supreme Court news this week, according to Jonathan Keim, writing in the National Review Online in the April 19 issue.  Keim tells us that five cases to be heard by the Court thus week concern the issue of overcriminalization statutory law.  This issue is one I have followed since it came on the scene a few years back.  I consider it but one among several major scandals in lawmaking and court decision-making.  It has several manifestations.  Most often it involves making laws for nearly every miniscule and supposed problem that individuals do not know they are breaking any law and would not be expected to know.  Of course it is a well-known legal precept that “ignorance of the law is no defense.”  But in this case, not only do people not know, but no reasonable person would be expected to know they have broken any law.

Another way overcriminalization expresses itself is in cases where prosecutors bring charges against individuals using statutes that have no reasonable relationship to the supposed offense.  Suppose I drove too fast on a highway and instead of being given a citation, I was charged with terrorism under anti-terrorist statutes.  This kind of thing happens all too frequently.

In other situations statutes fail to specify a criminal intent as part of the definition of an offense.  You could be arrested and convicted of a perfectly innocent act simply because you “did” something, no matter that you had no intent to do it.

In still other situations, government has (somehow) obtained the authority to seize—and keep in some cases—assets simply by claiming they are connected to a crime or are needed for the investigation.  Even if one is innocent and acquitted or never actually charged, the state gets to keep the assets.  Even if it doesn’t get to keep them, it is extremely difficult to re-acquire them.  Is this a taking under the Constitution?  The Court will decide.

Finally, overcriminalization occurs sometimes when the Federal or state governments issue regulations to implement some statute.  Regulations have the same force as any statute.  But there are many more and detailed regulations then statutes, so the government might (and has) prosecute an individual for any vague and obscure regulation that no individual could be expected to know.

I plan to stay attuned to how the court rules on these cases.  If you want to read about them, just go online to National Review and click on “Bench Memos.”  Then search for the article.  It is worth reading. Perhaps the courts will finally address this real problem and its related injustices.