The federal criminal "code": return of overfederalization.

• Author: O'Sullivan, Julie R.
• Position: Response to Susan R. Klein and Ingrid B. Grobey, Emory Law Journal, vol. 62, p. 1 - The Federal Leviathan: Is There Any Area of Modern Life to Which Federal Government Power Does Not Extend?

The federal criminal "code"--to the extent one can call the United States' sprawling and disorganized mass of criminal legislation and regulations a "code"--is a disgrace. In particular, the United States has overcriminalized and overfederalized in the realm of criminal law. (1) A recent article by Susan Klein and Ingrid Grobey in the Emory Law Journal argues that overfederalization is not a problem. (2) This Essay attempts first to present the material facts about which both sides of the debate agree. Then, it explains the basis of my fundamental disagreement with those who believe the "overfederalization" claim is overblown.

Fact 1: No definitive count of federal crimes is extant, and such a count is probably not possible without too much work to make the task worthwhile. Even Professors Klein and Grobey deem a definitive count "an impossible task." (3) The latest count is 4,000 criminal statutes, (4) but no one actually knows how many criminal prohibitions exist, in part because Congress regularly delegates to federal agencies the authority to promulgate regulations implementing legislation. (5) Congress often prospectively provides that when agencies finally issue the regulations, they can be enforced criminally. (6) Some estimate that federal agencies have generated hundreds of thousands of criminally-enforceable regulations. (7)

Fact 2: The undeniable trend is towards even more criminal legislation and criminally-enforceable regulations. Thus, one ABA Task Force determined that "[m]ore than 40% of the federal criminal provisions enacted since the Civil War have been enacted since 1970." (8) A report published by the Federalist Society noted that the explosive growth in federal crimes has continued unabated since the ABA Report. I concluded that the number of statutory provisions susceptible to criminal enforcement increased by one-third between 1980 and 2004. (9)

Fact 3: Those who argue that overfederalization is not a problem point out that, despite the ever-increasing federal criminal "code," the allocation of federal and state law enforcement has been stable for quite some time. (10) Between two and five percent of all criminal cases are federal, and between ninety-five and ninety-eight percent are state, a statistic that has been fairly constant. (11) It should be noted, however, that the absolute number of state and federal cases has increased. As Professors Klein and Grobey document, "[t]he number of federal criminal prosecutions has grown steadily, with little fluctuation, since 1980, at a rate of about 1,500 additional cases per year." (12) Thus, the number of federal criminal filings more than doubled from 1964 through 2011 despite a significant overall decline in crime rates.

Fact 4: Resource constraints mean the federal government can only bring a limited number of cases, no matter the breadth of the "code." (13) Professors Klein and Grobey rightly point out that about eighty percent of all federal cases fall into just four offense categories: drugs, immigration, guns, and fraud. (14) Of course, this means that twenty percent of federal resources are being devoted to other areas.

Fact 5: The number of regulatory violations pursued by the Department of Justice (DOJ) has declined from seven percent of the federal docket in 1980 to two percent in 2011. (15) In real numbers, this was a decrease from 2,925 cases in 1980 to 2,171 in 2011. (16)

In reliance on these facts, those who argue that over-federalization concerns are exaggerated contend first that the overabundance of federal legislation is not a problem because prosecutors ignore the overwhelming majority of these statutes. (17) Federal prosecutors can bring only a small number of cases; by overwhelmingly focusing on four categories of federal charging priorities, they have left the federal-state balance unaltered. (18) Second, where there are concededly problems with the code--such as the vagueness of many provisions and the disturbingly low mens rea requirements, particularly in the regulatory crimes area--the judiciary can correct them. (19) Thus, Professors Klein and Grobey argue, federal judges can be counted on to fix the drafting issues that prosecutors--invested with too much discretion and a vast and undisciplined code-otherwise might exploit.

So what is the problem, if there is one?

First, there is a cost to a massively overabundant, overlapping federal criminal "code" even if prosecutors are not enforcing it. Aside from the peculiarity of having prosecutors create essentially a code within a code, ignoring the vast majority of what Congress has deemed culpable, this state of affairs carries real and very serious costs.

At the most basic level, having thousands of code sections regularly ignored undermines the credibility of the criminal sanction. A criminal sanction carries moral stigma, (20) but that stigma is lost if the prohibition is perceived as trivial or completely disregarded.

On a more practical level, most agree that the proliferation of statutes results from Congress' proclivity for responding to events by just passing new statutes--regardless of whether they are redundant or not--or just elevating the penalties for existing crimes. As the ABA Task Force on Federalization of Criminal Law put it:

New crimes are often enacted in patchwork response to newsworthy events, rather than as part of a cohesive code developed in response to an identifiable federal need. Observers have recognized that a crime being considered for federalization is often "regarded as appropriately federal because it is serious and not because of any structural incapacity to deal with the problem on the part of state and local government." There is widespread recognition that a major reason for the federalization trend--even when federal prosecution of these crimes may not...