Nobody Knows for Sure

by Casey J. Bastian

If you were asked to identify the exact number of acts that are considered a federal “crime” in the U.S., could you do it? The answer is almost certainly no. No one, not even the federal government itself, knows the answer. Shockingly, there is no one resource where this information is concisely compiled. The byzantine system created by Congress is seemingly scattered across the U.S. Code and the Code of Federal Regulation (“CFR”). Legislators, lawyers, scholars, researchers, and journalists have for decades tried to determine how many criminal or unlawful acts are considered crimes under various federal laws, codes, statutes, and regulations. Not only is the actual number not precisely known, of the crimes that are known, many are so vague that no reasonable person could know exactly what conduct is prohibited. In 1982, Department of Justice (“DOJ”) official Ronald Gainer led the first effort to delve into this issue. Gainer was quoted as having observed that by the time you could answer the question “You will have died and resurrected three times.” And that was prior to the last 40 years, during which Congress continued its relentless campaign of criminalizing more and more conduct.

During the “tough-on-crime” 1990s, there were prolific expansions of U.S. Code sections that codify federal crimes. Specifically, during the period between 1994-1996, there was a nearly 10% increase of U.S. Code sections. Some of these sections create multiple crimes. It is estimated today that there are 5,199 crimes across 48,367 sections of the U.S. Code. In a 2021 case, Supreme Court Justice Neil Gorsuch noted during oral arugments, “We live in a world where everything has been criminalized.”

The CFR makes this reality even more concerning. Thousands of crimes are hidden in an enormous 236 volumes spanning 175,000 plus pages. An observation by Winston Churchill has apparently gone unheeded by Congress: “If you make 10,000 regulations, you destroy all respect for the law.” By the 1990s, there were over 300,000 regulations in America. It becomes truly dangerous when Congress abdicates its duty by empowering thousands of unelected bureaucrats to potentially turn you into a felon. The CFR allows the promulgation of regulations having the full force of laws but created by agencies like the Environmental Protection Agency, the Food and Drug Administration, and the Security Exchange Commission, etc., not our elected representatives.

The problem is so dire that you might not be able to confidently call yourself a “law abiding citizen” today. As prominent attorney Harvey Silverglate gate noted, the average citizen might unwittingly commit “three felonies a day.” Former U.S. Attorney General Edwin Meese, III has likely done more to bring attention to this escalating problem than any other figure in politics. Meese has written that this copious system of scattered, unintuitive, and vague laws has created “traps for the innocent but unwary and threaten[s] to make criminals out of those who are doing their best to be respectable, law-abiding citizens.”

One elected official who is trying to address this problem is Representative Chip Roy of Texas. Roy reintroduced “The Count the Crimes to Cut Act” in 2021. It has the support of three legislators—two Democrats and one Republican. A press release from Representative Roy states that: “Almost anyone over the age of 18 in this country could be indicted for some kind of federal infraction at any moment without even realizing they’re breaking the law. It’s time we finally count these crimes and get busy cutting a lot of them.”

Unfortunately, Congress doesn’t seem too interested in repealing any of the traps for the unwary that these laws have created, nor does it seem to desire an accurate accounting of its decisions. The last “official” DOJ attempt was made in 1982, and that took two years. Researchers found that there were approximately 3,000 laws. That was the attempt by Gainer when he was with the DOJ’s Office of Legal Policy (“OLP”). At that time, it required a manual, page-by-page review of the entire existing U.S. Code. An onerous task to say the least.

The American Bar Association (“ABA”) tried again in 1998. The ABA concluded one thing—it did not have the resources to replicate the OLP’s efforts. In 2004, Professor John S. Baker, Jr. with the Federalist Society tried again. Extrapolating from multiple sources, the first “Baker Report” found a “fairly conservative” estimate of over 4,000 crimes in the U.S. Code. Baker’s second report in 2008 found that the number had climbed to over 4,450 federal crimes.

No real analysis of the U.S. Code has been conducted since the second Baker Report. That was the case until the most recent project by researchers who issued a report called “Counting the Code: Quantifying Federalization of Criminal Statutes.” The analysis and report was created by GianCarlo Canaparo, Legal Fellow in the Edwin Meese, III Center for Legal and Judicial Studies of the Institute for Constitutional Government at the Heritage Foundation; Patrick McLaughlin, PhD, Senior Research Fellow and Director of Policy Analytics at the Mercatus Center at George Mason University; and Jonathan Nelson, a software developer and Liya Palagashivili, PhD, a senior research developer, both with the Mercatus Center at George Mason University.

The report is comprised of data culled from digital versions of the 1994-2019 U.S. Code as published by the Office of Law Revision Counsel. Data from the CFR were not examined. Instead, the researchers used a “text analysis algorithm” to inventory the digitized codes. U.S. Codes prior to 1994 were not available in a digital format to be reviewed by this project under its methodology. Researchers first evaluated the efficacy of certain search terms to be used to determine the current quantity of federal crimes created in the code sections. The report indicates that the 12 most precise search terms were selected after disregarding a variety that proved incapable of providing exacting responses. Those 12 terms were: “shall be fined under this title, imprisoned;” “Be fined under this title or imprisoned;” “imprisonment for not more than;” “sentenced to imprisonment or death;” “be fined not more than;” “imprisoned not more than;” “be punished by a fine;” “shall be fined or imprisoned;” “shall be fined;” “shall be punished;” “imprisoned not more than;” and, “shall be guilty of.” Once each section that contained one of these search terms was identified, the number of actual crimes was averaged across the U.S. Code sections.

After these 12 search terms were inputted into the algorithm, a final analysis yielded approximately 5,199 individual crimes in the 2019 U.S. Code. The researchers validated the results by comparing results of prior efforts, i.e.—OLP, ABA, Baker I & II and reviewed results for consistency with the “stylized facts on longitudinal changes and different episodes of federal criminalization.” The report also reveals discussion of examinations of what is considered “stylized facts,” being both increases of federalization over time and differences in the “post-mid-1990s” efforts to curb criminality.

There is no reason to believe that these data results do not comport with acknowledged increased federalization of crime over time. Continuous increases resulting in greater numbers of new code sections creating new federal crimes is apparent to everyone, even absent a comprehensive analysis. As the ABA previously concluded: “Whatever the exact number of crimes that comprise today’s ‘federal criminal law,’ it is clear that the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades.”

This disturbing trend has also been well documented in popular press and media, particularly as it pertains to drug laws and the proportional increases in federal prison population. The federal prison population has generally continued to increase, even as state-level prison populations have declined. This is likely the result of America’s “War on Crime.” Beginning in the 1960s, a law-and-order theme drove politicians throughout the Johnson and Nixon Administrations to be tough on crime. The 1970s saw the Comprehensive Drug Abuse and Prevention Act of 1970, which created a special narcotics task force. In 1973, the Drug Enforcement Agency was created via the Reorganization Plan No. 2 of 1973.

The most prolific growth in legislation occurred in the 1990s after the destructive crime wave of the 1980s. In the years between 1994-1996, bills such as: Law Enforcement Act of 1994 (infamously known as the “1994 Crime Bill”); Sex Crimes Against Children Prevention Act of 1995 (“SCACPA”); Antiterrorism and Effective Death Penalty Act of 1996; Child Pornography Prevention Act of 1996; Domestic Violence Offender Gun Ban; Comprehensive Methamphetamine Control Act of 1996; Church Arson Prevention Act of 1996; and dozens of others for a total of 57 crime bills in a two-year period. Congress created 231 new federal statutes between 1994-1996. In comparison, between 1996-2019, over six times as many years, Congress passed only 168 new federal statutes. The largest contributor to this growth is from the SCACPA of 1995, alone accounting for 40 percent of the growth in new crimes during that period.

This information about what exactly is a crime and how many crimes there actually are is vital to other areas of criminal justice research. The report identified six key areas where counting the code matters. The value of knowing just how many federal crimes there are is in identifying redundancies in federal laws and between federal laws and state laws. When new federal laws duplicate existing federal laws, or state laws, this results in a “patchwork of redundant crimes.” This erodes federalism because having federal authorities intervene when state authorities are fully capable of enforcing their laws undermines states’ rights. It also wastes valuable resources and dilutes political accountability.

The data further mens rea, or “guilty mind,” reform efforts, too. The current trend of over-criminalization erodes the traditional requirement of intent when one is alleged to have violated the law. The dramatic growth of strict liability offenses has experts claiming the results are wrong because it “leads to convictions of persons who are, morally speaking, innocent.”

This information can also be applied to questions of criminal laws and their relationship to criminal law and deterrence. The common belief is that more laws carrying harsher penalties deter criminal conduct. However, the data do not appear to support this belief. Nevertheless, the 1994 Crime Bill put over 100,000 new police officers on the streets, and in some areas, this might have reduced crime. But it also comes with several identified downsides as well. Increased imprisonment does not seem to have a true deterrent effect.

While we can’t live in a society without any laws, we now have too many of them. In Representative Roy’s press release, it reads: “Government exists to protect our liberty, not bury it alive under a pile of never-ending, unnecessary criminal laws. Federal politicians and bureaucrats have created innumerable crimes, and the result of this is overburdened law enforcement and distrust in our justice system.” That’s a premise that our Founding Fathers made very clear 226 years ago. James Madison said, “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read.”

We can begin to remedy the explosion in the sheer number of federal crimes by first determining the extent of the problem. Congress has created a system of criminal laws that no American can reasonably be expected to know and obey. With advances in technology, perhaps there may be hope that in the near future Congress will be able to fix this mess we call a criminal justice system.  

Sources: thehill.com; govtrackinsider.com; heritage.org

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