When Everything Is A Crime

At Slate, Tim Wu explores how the federal criminal code has become so vast that almost anyone can be prosecuted for violating some obscure law or regulation.

Under the Constitution, there wasn’t even supposed to be a federal criminal code, since crime control is chiefly a state responsibility. The federal government was only supposed to regulate to prevent things like piracy, crimes in federal enclaves, and obstructions of interstate commerce. Article I of the Constitution only gives Congress a limited number of powers, not the general power to prohibit crime throughout the country. As the Supreme Court observed in United States v. Morrison (2000) and United States v. Lopez (1995), decisions which struck down laws federalizing domestic violence and gun possession near schools, the Founding Fathers left the States with the general responsibility of punishing crime, and did not give Congress a general police power.

Not only has the federal criminal code become surpassingly broad, it has come to duplicate state criminal codes, leading to the possible of people being reprosecuted by federal prosecutors even after being acquitted in a state prosecution based on the same crime. The proposed Gang Abatement and Prevention Act of 2007 is one such example.

The federal hate crimes bill, also known as the Matthew Shepard bill, is another. I discuss in the Washington Times how some supporters of the bill seek to circumvent constitutional protections against double jeopardy, by creating a federal hate crimes law even though all states ban violent crime, and at least 45 states already have hate crimes laws of their own. Earlier, I discussed the loophole in constitutional double jeopardy protections that makes that possible, and how the federal hate crimes bill exceeds Congress’s power to regulate under the Commerce Clause and Section 5 of the Fourteenth Amendment.

Federal criminal legislation is often quite draconian. Consider S. 2045, a recent “Consumer Product Safety Commission” bill sponsored by Senators Mark Pryor and Daniel Inouye (and backed by wealthy trial lawyers), which would not only allow every state attorney general to sue sellers of consumer products, but also would authorize prosecution of company executives, and fines of up to $100 million, when products are alleged to have defects. That could easily put a small business out of business.

Excessive penalties are often counterproductive. During Saddam Hussein’s regime, the Iraqi national soccer team performed abysmally and lost game after game, because players were so terrified of draconian penalties if they lost a game. (A player’s penalty for losing games was sometimes to be tortured, even to death, by Saddam’s son Uday and his thugs). Today, with no such penalties to intimidate players, the team has revived to become one of the world’s most successful soccer teams, recently winning the Asian Cup.

What’s true for soccer players is also true for business executives. Excessive penalties visited on businesses and their executives are likely to drive them out of business, or to reduce their willingness to sell new products, rather than protect consumers or maximize consumer welfare.