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, encourages charge‑stacking and plea coercion, and disproportionately affects people with limited resources. Ranking Member Macbeth said overcriminalization “leads to more surveillance, profiling, and targeting within the minority communities.” Representative Raskin warned that selective enforcement and weakened public‑integrity prosecutions erode trust in justice.

Experts described concrete examples to illustrate the problem. Canaparo and others cited seemingly arcane federal offenses — including statutory or regulatory prohibitions sometimes described in testimony as criminalizing the sale of Swiss cheese without holes or labeling requirements for canned green beans — to show how malum prohibitum rules are scattered across hundreds of pages of statute and regulation. Michael Fox recounted a case he described in his testimony in which two men who cut lines on a research apparatus to free sharks were prosecuted for felony theft in maritime jurisdiction; he said the Eleventh Circuit affirmed the conviction despite judicial criticism of the prosecution’s choice to bring the case. Brett Tolman, founder of the Tolman Group, described a South Dakota ranching family who were indicted over a century‑old fence dispute; Tolman said the charges were later dismissed.

Proposals and testimony: witnesses recommended several legislative and executive actions. - Count and cut agency crimes: Giancarlo Canaparo urged directing agencies to submit a list of all regulations with criminal enforcement and to void anything they do not list; the idea is to simultaneously produce a usable count and remove rarely used or arcane criminal rules. "Direct every agency to send you a list of all the regulations which can be criminally enforced," he said. - Mens rea defaults and reform: witnesses and several members supported legislation to require an explicit mens rea element in new criminal statutes and to create a statutory default mens rea where statutes are silent. Tolman and others said default intent requirements would limit strict‑liability prosecutions. - Repeal or limit old regulatory crimes and create mistake‑of‑law defenses: Canaparo and Turley recommended pruning long‑unused regulatory crimes and considering limited mistake‑of‑law defenses for malum prohibitum offenses. - Jury information and prosecutorial review: Michael Fox suggested mandating that federal judges inform jurors of the historic prerogative to acquit against the evidence when justice requires, and witnesses discussed review mechanisms for questionable prosecutions. - Supervision reforms: witnesses also referenced the SAFER Supervision Act as a way to shorten and better target federal post‑release supervision.

Members and witnesses diverged over emphasis and next steps. Some members stressed the need to defend vigorous enforcement against serious violent and white‑collar crime while narrowing the scope of federal criminal law. Several members asked how immediate relief could be afforded to people swept into the system; Turley and others urged a two‑track approach of (1) walling in future criminalization with procedural and mens rea requirements and (2) using agency lists and technology (including algorithmic tools) to identify and cut regulatory crimes already on the books.

No formal votes or committee actions were taken at the hearing. Witnesses and members said legislation already pending in earlier sessions — including the Count the Crimes to Cut Act and mens rea reform proposals discussed in testimony — would be relevant next steps. The subcommittee concluded after approximately 90 minutes of testimony and questioning and left potential legislative options open for follow‑up work.

Ending: The hearing provided a pointed inventory of the policy problem and a range of proposals members can use to craft bills or oversight requests. Committee members and witnesses indicated they would press staff work to quantify agency crimes, consider a default mens rea, and review which regulatory criminal provisions to repeal or revise. No consensus measure was adopted during the hearing.