The media is fond of calling out our “do-nothing Congress.” Indeed, our national lawmakers’ last term was one of the least productive in history.
But maybe that’s not such a bad thing.
According to author John Whitehead, Congress has created, on average, 50 new crimes per year for the past decade. Not 50 new laws. Fifty new crimes.
The trend is headed in the wrong direction. In just the five years from 2008 until 2013, according to the Congressional Research Service, Congress created 439 new criminal offenses. That made for a grand total of 4,889 federal crimes. And that’s in addition to the growing number of state and local crimes for which Americans can be prosecuted.
To make matters worse, many of these federal laws lack any mens rea, or “guilty mind,” requirement. That means you can be prosecuted even without criminal intent. Didn’t mean to break the law? Tough luck.
Not all criminalization is bad, of course. We really do need laws — new ones in some cases — to combat child pornography, human trafficking, police brutality, and other such affronts. The problem is when Congress oversteps and federal law enforcement authorities go hog wild, drunk with power.
In late 2013, Coast Guard agents — that’s right, even the Coast Guard has federal agents — stormed the home of a Washington Times reporter to search for a “potato gun.” A what?
It’s a homemade device that uses a PVC pipe to launch potatoes and other vegetables into the air. I had one as a kid.
The agents didn’t find a potato gun or any other weapon. Instead, they seized the reporter’s notes, which identified her sources — and for which they didn’t have a warrant. The Coast Guard claimed they’d discovered government documents, but they were forced to return the notes after learning the documents were legally obtained through the Freedom of Information Act.
More recently, two environmental protesters went to the headquarters of Devon Energy, a large utility with ties to the foiled Keystone XL Pipeline, where they unfurled a banner in the lobby. It read, a la The Hunger Games, “The odds are never in our favor.”
As the banner unrolled, some glitter fell onto the floor of the lobby. Police arrived, determined the glitter was a “potentially hazardous substance,” and charged the duo with perpetrating a “terrorism hoax.” In the end the charges were dropped — but not before the protestors were booked, fingerprinted, and arraigned.
There’s some light at the end of this tunnel. The House of Representatives earlier this year adopted a new rule whereby the Judiciary Committee has the opportunity to “review and improve the language“ of any bill that creates a new federal crime or modifies an existing one.
The move has the support of both the conservative Heritage Foundation and the progressive National Association of Criminal Defense Lawyers. Supporters hope that cooler heads will prevail in the committee and that federal criminalization will be slowed.
It’s a good start. But in the end, perhaps what we really need are more “do-nothing” Congresses.
OtherWords columnist John Kiriakou is an associate fellow at the Institute for Policy Studies and the winner of the 2015 PEN Center USA First Amendment award.