House Judiciary subcommittee hearing spotlights growth of federal and regulatory crimes, experts urge mens rea defaults and an audit of agency rules

Chairman Biggs opened a House Judiciary subcommittee hearing titled “Criminalizing America: the growth of federal offenses and regulatory overreach,” saying Congress should examine how federal criminal law has expanded and ask whether some conduct should be left to states. "Today's hearing is titled criminalizing America, the growth of federal offenses and regulatory overreach," he said.

The panel of witnesses told members that U.S. criminal law has grown far beyond the three crimes named in the Constitution and the 23 offenses enumerated in the Crimes Act of 1790, and that both Congress and federal agencies now create criminal offenses that many Americans do not know exist. "We are a nation of too many laws," said Michael Fox, legal fellow at the Cato Institute, arguing that the proliferation of statutes and regulatory crimes can land people in prison for conduct they did not realize was criminal. Giancarlo Canaparo, senior legal fellow at the Edwin Meese Center, told the panel his team's review of the U.S. Code counted 5,199 crimes in the code alone and that regulatory provisions likely add “between 300,000 and 400,000” more.

Why this matters: witnesses and members said the growth of malum prohibitum offenses (acts wrong only because law says so) plus frequent absence of intent requirements (mens rea) allows prosecutorial overreach,…