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How many federal crimes has Congress created? The question seems like it ought to have a straightforward answer that citizens can look up. In fact it’s more like asking, “how many genes are in the human genome?” The answer is in the many thousands, but despite decades of counting, no one knows for sure.

A new project by the Heritage Foundation and George Mason University’s Mercatus Center says it is “the first effort to ‘count the Code’ since 2008.” The researchers created an algorithm with key phrases like “shall be punished” and “shall be fined or imprisoned” to search tens of thousands of pages in the U.S. Code.

In the 2019 Code, they found 1,510 criminal sections. By examining some of those sections at random, they estimated that they encompass 5,199 crimes in total. The Heritage Foundation report notes that “there is no single place where any citizen can go to learn” all federal criminal laws, and even if there were, some “are so vague that . . . no reasonable person could understand what they mean.”

By running their algorithm on past versions of the U.S. Code going back to 1994, the researchers also estimate the rate at which criminal laws are proliferating. There were about 36% more criminal sections in 2019 than 25 years earlier, for an overall growth rate of 1.27% per year. More than half of the growth took place from 1994 through 1996. Since the mid-1990s, the biggest annual increases were in 2005-2006 (2.48%) and 2011-2012 (2.76%).

These figures, the report emphasizes, don’t cover the 175,000 page Code of Federal Regulations, which contains an unknown number of crimes created by executive-branch officials under authority delegated by Congress. The results can be grimly amusing. Defense lawyer

Mike Chase

has highlighted many examples, such as a 2006 regulation that creates a potential five-year prison sentence for bringing more than $5 of nickels out of the U.S.

But even when it comes to conduct everyone agrees should be criminal, the inexorable expansion of the Code has serious consequences for justice and federalism. The Constitution envisioned that most lawbreaking would be handled by state governments, while the federal government’s jurisdiction would be narrower.

As Congress asserts jurisdiction over conduct already criminalized by states, however, that division erodes. “Duplicative” laws mean prosecutors can “charge different people committing the same offenses with different crimes, opening the door for bias,” the report notes.

Or they can be prosecuted twice for the same offense. The Supreme Court has held (most recently in 2019’s Gamble v. U.S.) that consecutive state and federal prosecutions don’t violate the Fifth Amendment’s double-jeopardy clause.

Both political parties should recognize the risks of an ever-expanding roster of federal crimes, which invites abuse by prosecutors. How about a commitment by Congress to re-examine the necessity of an existing crime for every new one it creates?

Wonder Land: As District Attorneys pull back on prosecution and focus on areas like bail reduction, crime rates are rising. Perhaps voters are now starting to regret the consequences of electing progressives. Image: Johannes Eisele/AFP via Getty Images

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Appeared in the January 22, 2022, print edition.

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