After mountain runner Michelino Sunseri ascended and descended Grand Teton in record time last fall, his corporate sponsor, The North Face, heralded his achievement as "an impossible dream -- come true." Then came the nightmare: Federal prosecutors charged Sunseri with a misdemeanor punishable by up to six months in jail for using a trail that the National Park Service described as closed, although it had never bothered to clearly inform the public of that designation.
Sunseri unwittingly violated one of the myriad federal regulations that carry criminal penalties -- a body of law so vast and obscure that no one knows exactly how many offenses it includes. An executive order that President Donald Trump issued last week aims to ameliorate the injustices caused by the proliferation of such agency-defined crimes, which turn the rule of law into a cruel joke.
The Code of Federal Regulations "contains over 48,000 sections, stretching over 175,000 pages -- far more than any citizen can possibly read, let alone fully understand," Trump's order notes. "Worse, many (regulations) carry potential criminal penalties for violations."
How many? As Supreme Court Justice Neil Gorsuch and coauthor Janie Nitze note in their 2024 book on "the human toll of too much law," even experts cannot say for sure, although "estimates suggest that (SET ITAL) at least (END ITAL) 300,000 federal agency regulations carry criminal sanctions today."
At the federal level, in other words, regulatory crimes outnumber statutory crimes -- another uncertain tally -- by a factor of roughly 60 to one. Since the latter category has exploded during the last century, that is no small feat, but it is what you might expect when unaccountable bureaucrats are free to invent crimes.
"Many of these regulatory crimes are 'strict liability' offenses, meaning that citizens need not have a guilty mental state to be convicted of a crime," Trump notes. "This status quo is absurd and unjust. It allows the executive branch to write the law, in addition to executing it."
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Trump said prosecutors generally should eschew criminal charges for regulatory violations based on strict liability and focus on cases where the evidence suggests the defendant knowingly broke the rules. Trump also instructed federal agencies to "explicitly describe" conduct subject to criminal punishment under new regulations and prepare lists of regulatory violations that already can be treated as crimes.
Given the enormous volume and range of federal regulations, that last requirement is a tall order. But if the agencies that issue those regulations cannot specify all of the violations that can trigger criminal penalties, what hope does the average American have?
Those penalties may not be readily apparent because "you need to consult at least two provisions of law to identify regulatory crimes," GianCarlo Canaparo, a senior legal fellow at the Heritage Foundation, explained in Senate testimony this month. A regulation that says "Swiss cheese must have holes throughout the cheese," for example, says nothing about criminal prosecution, which is authorized by a separate provision of the U.S. Code.
Canaparo noted other examples gathered by Mike Chase, author of the comical yet accurate book "How to Become a Federal Criminal." It is a federal crime, for instance, "to sell a tufted mattress unless you have burned 9 cigarettes on the tufted part of it," "to submit a design to the Federal Duck Stamp contest if your design does not primarily feature 'eligible waterfowl,'" and "to sell a small ball across state lines unless it is marked with a warning that says, 'this toy is a small ball.'"
Getting a handle on this bewildering situation will require more than prosecutorial restraint, a matter of discretion that is subject to change at any time. Canaparo argues that Congress should eliminate "excess federal crimes," add mens rea ("guilty mind") requirements to provisions that lack them, and recognize a defense for people who did not realize their conduct was unlawful. As he notes, rampant overcriminalization makes a mockery of the old adage that "ignorance of the law is no excuse."
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