Too Many Federal Crimes, Too Many without Mens Rea — Do We Have a Movement Yet?

We’ve posted several times about how there are just too many federal crimes, many created by regulatory fiat or otherwise without meaningful oversight by elected officials. About how a great many of them are apparently drafted by people with no understanding of how criminal law works and why. About how, as a result, there are an insane number of federal crimes (all felonies, of course) that penalize without any mens rea requirement at all. The most innocent accident, the most harmless and unintentional error, can make any honest and decent citizen a felon. (Sample posts here and here.)

We’re not the first to talk about it, by any means. We won’t be the last. But it’s starting to look like we’re reaching a tipping point — a critical mass of public awareness that might actually lead to … dare we say it … change?

Back in July, we cited a recent study that showed that, when a perception is firmly held by fewer than 10% of a population, it doesn’t really catch on. But for some reason, once the magical number of 10% is reached, the opinion spreads like wildfire. From obscurity, the idea suddenly becomes a majority view.

This 10% number pops up no matter what relevant population you’re looking at, no matter what social network. All that it takes to change the world is to have 10% of them be firmly committed, stubborn, and outspoken.

Over the rest of this summer, we’ve seen more and more references to this overcriminalization. ¬†They’ve come mainly from the libertarian right and the defense bar, as one might expect, but it’s also been catching on in the mainstream press, left-leaning internet fora, and other places indicating that the idea is starting to take root in the general consciousness.

The last several days have seen a marked uptick in the topic. The New York Times cited it three days ago as a reason why people are taking pleas rather than going to trial. The Wall Street Journal has been doing a series on it, culminating yesterday in a long article on pretty much everything mentioned in the first paragraph of this post. And various bloggers and redditors and the like have been talking it up more than usual.

It’s starting to look less and less like a passionate few shouting in futile obscurity, and more and more like a movement.

Excellent. Let’s keep it up, shall we?

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(Aside — If we were a Republican presidential candidate, we’d jump on this in a heartbeat. Not only would we be getting out in front of the movement, the better to be mistaken for a leader, but it would be a great way to repackage part of the platform. The present platform calling for less regulation comes off as a kind of “help out corporations at the expense of the people and the environment” thing. But make it a call for less regulation in the name of social justice — with plenty of anecdotal examples of real individuals who have been fucked by the fourth branch — and it becomes a populist battle cry. Just sayin’.)

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2 Comments

  1. Robert Lawyer, November 2, 2011:

    This was so interesting. I was talking to my uncle recently, a criminal lawyer in Alabama, about going to law school, and he was the first to mention the overcriminalization movement to me. It piqued my interest, and I think you make a really valid point. Too many people make an innocent mistake and suddenly become criminals; something about that is just wrong. So count me in on your movement!

  2. Nathan, November 2, 2011:

    Excellent! Critical mass, here we come!

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