- The Washington Times - Friday, December 17, 2010

Two former U.S. attorneys general are urging House Republicans to adopt a new rule in the new Congress to rein in federal criminal charges. It’s an important step to protect innocent Americans from the net of an overzealous government leviathan.

The recommendation from Edwin Meese III and Richard L. Thornburgh would require that every bill creating a new or enhanced federal criminal penalty be referred to the HouseJudiciary Committee for review of its criminal-law provisions. For instance, if a bill defines a new violation to be enforced by the Occupational Safety and Health Administration and punishes violators with criminal penalties, the Judiciary Committee would be asked to weigh in.

Criminal penalties traditionally were applied when offenders had a “guilty mind,” meaning they knew they were committing an offense. Unknowing technical violations often could be punished with monetary fines without creating a criminal record or forcing imprisonment. According to a May report by the conservative Heritage Foundation and the liberal National Association of Criminal Defense Lawyers, however, 60 percent of new criminal offenses created by Congress in 2005-06 lacked a “guilty mind” requirement. From 2000 through 2007, Mr. Meese and Mr. Thornburgh wrote, “Congress enacted 452 new federal crimes. That is an average of one new crime enacted every week of every year.” There are hundreds of thousands of regulations that can be enforced through the criminal process.

There’s no way ordinary citizens can be cognizant of all these regulations, which is why so many unintentional, relatively harmless acts lead to horror stories. A book called “One Nation Under Arrest,” edited by Paul Rosenzweig and Brian W. Walsh, highlights some of the worst, such as the seafood importers thrown in jail for eight years for packing lobster tails in plastic instead of cardboard. There also is the sad tale of an elderly orchid importer imprisoned for filing the wrong paperwork with the U.S. Fish and Wildlife Service.

Something has to be done to reverse Washington’s trend of overcriminalizing everything. House committees overseeing environmental or employment regulations have no expertise in criminal law. That’s why the Judiciary Committee needs to examine whether new regulations govern conduct that should be considered criminal. Otherwise, bureaucrats become storm troopers, and nobody is safe.