Rafael A. Mangual joins John Stossel to discuss how the expansion of state and federal criminal laws puts well-meaning citizens at risk of serious prosecution.
The number of state and federal laws carrying criminal penalties has grown dramatically since the mid-twentieth century. At the federal level alone, more than 300,000 laws and regulations govern ordinary business practices and everyday activities—and, if violated, can lead to prison time. The list of criminal laws by which Americans are bound continues to grow.
Ignorance of the law is no excuse for serious criminal behavior, of course, but no one can keep track of all the arcane rules being created by state and federal legislators. “Overcriminalization” is a threat to American liberties.
To address overcriminalization, the federal government and state legislatures should consider measures that would set a default standard of criminal intent, and expand the ability of well-meaning citizens to invoke a mistake-of-law defense. Lawmakers should also make legal compliance easier and cheaper by recodifying the criminal law into a single statutory code so that people don’t have to read through mountains of legalese to find out what behavior is considered criminal. The government should also regularly repeal laws we no longer need.
And finally, we need to restore representation in the criminal lawmaking process by requiring elected representatives to vote on and approve a rule before it can be criminally enforced. Learn more about overcriminalization and what to do about it in a report by James R. Copland and Rafael A. Mangual, Overcriminalizing America: An Overview and Model Legislation for States.
This video is part of a special collaboration with John Stossel and City Journal contributors.
Video Transcript
John Stossel: We need police and law to keep us safe.
Rafael A. Mangual: There is a real role for the government to play when we're talking about keeping people safe from actual criminals. People who commit murder, robbery.
John Stossel: Rafael Mangual, of City Journal, is a tough on crime guy.
Rafael A. Mangual: A lot of crime is committed by the people who are getting out of prison
John Stossel: But now he also argues…
Rafael A. Mangual: There are a lot of laws that don't actually keep people safe, yet still have criminal teeth. For example, there's a federal prohibition on walking a dog on a leash longer than six feet on federal property. It is a jailable offense.
John Stossel: Criminal law has exploded in size and scope.
Rafael A. Mangual: There are already a ton of criminal laws on the books.
John Stossel: Three hundred thousand plus.
Rafael A. Mangual: That's just federal. It's way, way too big. And part of that is because we don't take any old or outmoded laws off the books. There are still laws in South Carolina, that ban playing pinball if you're under the age of 18.
John Stossel: In Michigan, prosecutors filed criminal charges against a 10-year-old who, during a dodgeball game, threw a ball at another kids’ face and hurt him.
Mom: This is a kid that was playing on the playground with his friends.
Newscast: Bryce was charged with aggravated assault.
Rafael A. Mangual: Is this 10-year-old a criminal? No.
John Stossel: The prosecutor said she dropped the case.
Rafael A. Mangual: Yes.
John Stossel: But that it was sustainable, and she could prosecute.
Rafael A. Mangual: Anyone can be prosecuted for almost anything. It can be something as simple as lying to your boss over the phone about why you didn't come in. That could constitute wire fraud. Taking a rake from New York State into New Jersey, that's actually a federal crime. If you've ever had a rake in the back of your pickup truck and crossed state lines, you probably committed a federal crime.
John Stossel: Who cares? Nobody goes to jail for this.
Rafael A. Mangual: That doesn't mean that it's not a problem. Legal compliance is not free. It takes time, it takes money, it takes effort. It violates just fundamental norms about fairness.
John Stossel: During a hurricane In North Carolina, Tammy Hedges sheltered some animals.
Tammy Hedges: The goal was to make sure that they were not out there drowning.
Newscast: She didn't have this registered as a shelter.
Newscast: Tammy Hedges is charged with misdemeanor practicing or attempting veterinary medicine without a license.
John Stossel: The prosecutor says, "A passion and love of animals is laudable, but does not excuse unnecessarily putting their health at risk."
Rafael A. Mangual: The idea that these people were engaged in the sort of behavior that ought to be met with jail time really does seem to belie reality.
John Stossel: How did we get to this point, with so many laws, even lawyers can’t count them?
Schoolhouse Rock! song: “I’m just a bill, yes I’m only a bill”
John Stossel: We were taught that the Constitution created checks and balances to prevent bad bills from becoming law.
Rafael A. Mangual: Everyone has this idea from Schoolhouse Rock, that a law gets made in a particular way.
Schoolhouse Rock! song: “Now I go to the House of Representatives and they vote on me.”
Rafael A. Mangual: That's not how it works in practice. At the federal level, 98% of criminal laws are not passed by elected representatives. They are created entirely by unelected bureaucrats who don't have to answer to anyone.
John Stossel: In Denver…
Newscast: A metro bar manager hauled off to jail for infusing vodka.
Newscast: It is illegal to infuse it yourself and then sell it.
Rafael A. Mangual: Here you've got a really creative bartender trying to come up with a good idea for an artisan cocktail, and comes up with some really good concoction that his customers want.
Newscast: The on-duty manager was hauled off to jail.
John Stossel: The bar manager was jailed for three days?
Rafael A. Mangual: Yeah. He didn't know that this was a crime, but it didn't matter. No patron complained because they got sick. This was enforced solely to appease some competitor who just didn't have the same sort of edge or creativity.
John Stossel: A competitor? Another bar?
Rafael A. Mangual: A huge part of this is driven by established players in certain fields seeking to erect barriers to entry.
John Stossel: Barriers to entry, bottlenecks that limit competition. The old businesses get the laws passed to keep newcomers out.
Rafael A. Mangual: That's right, they can afford the lobbyists, and they can afford comply with all the crazy webs of regulations. So if you've got an established cookie business, you don't want a grandma from down the street who has a better recipe than you, being able to cut into your business by just making her famous cookies.
So you go to the legislature, and you ask them to pass all kinds of arduous rules about an industrial kitchen and all this expensive equipment that you that need in order to qualify to participate in this business, and then who gets to decide? The very people who are established in this business.
John Stossel: Is that what happened to Mariza Ruelas?
Newscast: Ruelas got caught selling ceviche in a Facebook group, which is illegal.
Rafael A. Mangual: She wasn't even actively selling it. It was solicited by a sort of undercover investigator in this special unit to enforce these really-
John Stossel: A sting operation.
Rafael A. Mangual: It was a sting operation.
John Stossel: [statement from San Joaquin County District Attorney’s Office] “The DA's office works to keep an even playing field for businesses.”
Rafael A. Mangual: At the root of a lot of the over criminalization problem is this anti-competitive sort of nature of established players who want to use the government to keep them protected from competition, and that's just not right.
John Stossel: Last example, in Kentucky, Holland Kendall gave eyeglasses to people who couldn’t afford to pay eye doctors. The optometry board then announced it is a crime.
Newscast: If eyeglasses provided are not new, first quality, and made to meet the individual's personal prescriptions. And they need to have a license.
Rafael A. Mangual: In other words, they need to have the blessing of the established players in this field in order to provide a service to indigent people.
John Stossel: Why would the prosecutor eagerly enforce this?
Rafael A. Mangual: You can't have some office with a budget line in the state budget exist for years on end without ever actually doing anything. When you give the government this kind of power, they're going to exercise it at some point.
John Stossel: Overcriminalization puts all of us at risk of being prosecuted for things that we don’t even know are illegal.
Rafael A. Mangual: People commit crimes all the time without knowing it, because it's impossible to know what sort of behavior is criminal. When they get labeled as criminals, that stays with them through their whole life.