The Minefield of American Criminal Law

Over the weekend, the Wall Street Journal ran an excellent article about the problem of overcriminalization—the proliferation of criminal laws and how more and more people can find themselves on the wrong side the law without even realizing it. Here’s an excerpt:

In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities “notified me to get a lawyer and a damn good one,” Mr. Anderson recalls.

There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.

Read the whole thing.

It’s great that this phenomenon is getting more attention. Too many people in Washington seem to think that the more laws Congress enacts, the better the job performance of the policymakers. That’s twisted. Before an elected official can take any action whatsoever, he or she must first take an oath to uphold and preserve the Constitution—and the role of the federal government in the criminal area is supposed to be quite limited. I testified before a congressional committee two summers ago on this subject. And Judge Alex Kozinski, quoted in the WSJ article above, has a terrific essay in my book, In the Name of Justice, about the score of federal criminal laws now on the books. And Cato adjunct scholar Harvey Silverglate authored a fine book on the problem, called Three Felonies a Day. More here (pdf) and here.