The Criminalization of America
| Publication year | 2015 |
| Pages | 0225 |
| Citation | Vol. 76 No. 4 Pg. 0225 |
When our country began there were three federal crimes: treason, counterfeiting and piracy on the high seas.1 By 1982, when a Justice Department task force attempted to calculate the number of crimes in the federal code, there were approximately 3,000.2 The word "approximately" is not used by mistake: the Justice Department could only come up with an estimate rather than the exact number even after two years of intensive legal research.3 Today it is reasonable to estimate that there are more than 4,500 federal crimes accompanied by 300,000 regulations that can be enforced with criminal sanctions.4 As a Louisiana State University Law Professor John Baker stated, "There is no one in the United States over the age of 18 who cannot be indicted for some federal crime."5
Many of these federal crimes are referred to as "white collar crimes." In essence, that term has been used to describe economic or business crimes whether committed by organizations or their officers or employees. The pervasiveness of these criminal regulations against companies is untraditional and has increased the involvement of government in corporate activities which had not previously drawn the eye of concerned government officials, the public or anyone else save the parties involved. The concern has not brought with it an improvement of business conduct on the part of corporations, but rather the imprisonment of nonviolent people for acts that could have been resolved without burdening the federal prison system with another inmate and without removing an otherwise productive person from the ranks of society.
What has occurred in recent years has been an increasing tendency of the federal government, in particular, and the state governments to a lesser extent, to make conduct that once would have been of no consequence or treated as a civil or administrative matter to be treated as criminal conduct. In addition to this criminalization of conduct, there has also been an increase in the federalization of crime, i.e., the federal government expanding its control into areas traditionally reserved to the states. This creates a great deal of overlapping statutes and regulations that effectively operate as a web, entrapping unwary people who might have good intentions but nevertheless find themselves violating one of a thousand laws of which they may have never heard. In a Wall Street Journal article a questionnaire was printed listing 25 common offenses. Most people interviewed for the article had indicated they had committed eight or more of the crimes. An Episcopal priest in Houston who admitted to having broken 12 laws on the chart said, "There are so many things legally one can get in trouble for breaking, it would be difficult not to be a lawbreaker in our society." The priest said that presumably because it has become increasingly difficult to keep track of what laws are enacted, which have been repealed and which might be enacted in the next week, month or year. And that is precisely the point: in a society that generally holds that ignorance of the law is no excuse, the number of laws should not be so unreasonably high that a person could not help but be ignorant of them.6
The number of laws, particularly ones targeted at corporations, has not always been so high. Even if the laws were in the books, they were not necessarily enforced with such vigor that they yielded strange convictions against people who were probably never the targets of the enforcement provisions to start with. The expansion of the legal web and of federal enforcement practices began sometime in the 1980s. For example, prior to 1983, no major defense contractor had been convicted of procurement fraud.7 From 1983 to 1990, 20 of the largest 100 had been convicted.8 Recent data shows that between 2001 and 2011, the Department of Defense charged 54 companies with "fraudulent practices."9
The expansion of the scope of criminal law has not been limited to corporations and fraud allegations. The highest appellate court of New York, the New York Court of Appeals, ruled in 1990 that state prosecutors could file criminal charges, including murder and assault charges, against employers for injuries to their employees at work.10 An article in The New York Times noted a growing tendency at that time around the country to prosecute crimes in the workplace.11 Under OSHA, an employer can be held criminally liable for willful violations of OSHA rules that result in an employee's death.12
Similar developments have occurred in the field of environmental criminal law. In 1985, there were 40 indictments and 37 pleas of guilty for environmental crimes.13 Four years later, there were more than 100 indictments and an equally large number of pleas and convictions including Ashland Oil Company, Texaco, Inc. and Ocean Spray Cranberries.14 The Justice Department website states: "From October 1, 1998 through June 30, 2013, [the Environmental Crime Section (ECS)] concluded criminal cases against more than 1,005 individuals and 373 corporate defendants, leading to 729 years of incarceration and $743 million in criminal fines and restitution (852 years with incarceration, halfway house and home detention)."15 One publication listed the top 100 corporate criminal corporations of the 1990s.16 Included were such national and international companies as Exxon, Pfizer, Rockwell, Royal Carmike Cinemas, Teledyne and GE, which paid fines varying from $9.5 million to $125 million.17 Should the threat of criminal prosecution as well as criminal prosecutors be allowed to control corporate conduct when civil penalties seemed to serve this function effectively in the past?
Even the field of healthcare law has not escaped the rise of federal laws and regulations.18 With the passage of the Affordable Care Act came not only the possibility of additional criminal charges filed by crafty prosecutors, but also the lessened burden of proof that would ordinarily deter these prosecutors.19 Without restating many of the arguments made in an earlier article,20 1 can summarize the effect of the Affordable Care Act on criminal law as follows: it removed or greatly reduced the burden on the prosecution to produce evidence of mens rea or criminal intent in healthcare fraud cases.21 This, in turn, exposes more innocent citizens to serious criminal liability even when they act with nothing but good intentions and without any awareness that they are doing anything illegal.22 Is that really in the best interest of our society?
The federal government's answer to that question thus far has been a resounding "yes!" In order to pursue all of these new targets, every federal agency increased the size of its enforcement office.23 In addition to the FBI, the Postal Service, Custom Service, IRS, Department of Agriculture, Department of Defense, etc. have increased their enforcement offices.24 The Defense Department Inspector General's office went from two to three dozen people in the mid-80s to more than 1,400 people in the mid-90s.25 Each major agency now has an Inspector General's office which has both civil and criminal investigative power. This dual power is a shift from the former practice of keeping a clear line between civil and criminal agents, as in revenue and special agents of the IRS.
The Cost of a Bloated Criminal Code
The effect of this phenomenon has been to not only increase the costs of government but also to increase the costs of doing business for the private sector and to add layers of management and internal controls at every level necessary to cope with criminal investigations. We have come a long way from William Blackstone, the English legal scholar whose writings were the foundation of English Law when our Constitution was written. He wrote that a corporation could not commit a crime in its corporate capacity.26 He believed that the criminal law was not made for businesses but for individuals.27 The Federal Corporate Sentencing Guidelines established in 1987 make clear that Blackstone has been overruled.28 The Guidelines outline a compliance program that corporations are expected to follow.29
There are currently 4,500 criminal statutes and more than 300,000 federal regulations that can be enforced with criminal sanctions.30 Amongst these are some statutes that are surprising not only because of the conduct they criminalize but also because of the penalty they carry. For example, 18 U.S.C.A. § 607 (2014), prohibits the solicitation of donations in buildings where federal officers are employed. The offense is punishable by up to three years in prison and a fine of up to $5,000.31 Presumably, the statute applies even to large office buildings where any one office might be occupied by a single federal employee (and perhaps even when the solicitor does not know this fact). Another statute, 21 U.S.C. § 331 (2014), forbids the sale of margarine unless it is marked as such or is cut in a triangular shape. What is the punishment for disobedience? Up to a year in prison for the first offense and up to three years for the second.32 How can a citizen or even a corporation keep up with all of these obscure rules? To be aware of these regulations might require hiring several lawyers just to be sure you are in compliance with all of the statutes and regulations in the federal code.
It has been suggested that a corporation should look at its history to decide where to focus its energies. Logically, if the corporation does business with the Defense Department, it should be concerned with Federal Procurement Laws. However, given the pervasive nature of criminal prosecutions that advice might be said to be "for the birds." The case of United States v. FMC Corp.33 is illustrative. FMC produces pesticides.34 It is a sophisticated company, and its leaders and managers, if not the day-to-day staff...
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