The Federalist Society

The Explosion of the Criminal Law and Its Cost to Individuals, Economic Opportunity, and Society

January 25, 2010

William R. Maurer, David Malmstrom

Today’s legislatures use the criminal code not just to prevent or punish wrongdoing, but to regulate a wide range of personal, economic, and social conduct.  This overcriminalization occurs at both the state and federal level.  By the most recent count, there are at least 4,450 federal crimes on the books, an average of 57 crimes added to federal law per year.  Given the enormity of the code, it is no wonder that the Ninth Circuit’s Chief Judge, Alex Kozinski, believes “You’re (Probably) a Federal Criminal.”  And if the reader were not yet a criminal, with a growth rate of 500 crimes per decade, you may eventually become one, even if you do nothing to alter your current conduct.  Even if you somehow manage to steer clear of violating a federal statute, there are many more federal regulations that could land you in jail.  Many of these federal crimes cover conduct that is truly local in nature and thus violate constitutional federalism.  There is a similar trend in state law to criminalize personal, economic, and social conduct and, while these laws do not violate principles of federalism, they do illustrate the consequences of an overly-expansive criminal code.

The Explosion of the Criminal Law and Its Cost to Individuals, Economic Opportunity, and Society  


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