It was not always so, Rosenzweig notes. For hundreds of years, only those who wrongfully injured others and did so intentionally were subject to criminal punishment. Accidents did not qualify as criminal behavior. Neither did negligence. Those responsible for accidents or negligence that harmed others paid for the damage in civil suits. Courts assisted in deciding how much, but they never considered using criminal sanctions to deliver “social justice.”
Today, accidents and negligence are frequently prosecuted as crimes, says Rosenzweig, Senior Legal Research Fellow in the Heritage Foundation’s Center for Legal and Judicial Studies.
More and more actions previously considered mere civil transgressions are being criminalized. People who violate federal regulations are held responsible for “crimes,” even if they didn’t know those regulations existed or, in some cases, even if they had ordered their employees not to violate the regulations.
“There is market of public approval for more criminal laws, and no effective consideration of countervailing costs to society,” Rosenzweig says. “In the absence of any judicial check on this trend, the result is a wholesale transfer of power from elected legislative officials to prosecutors who, in many instances, are unelected and not responsible to the public.”
The Founding Fathers established exactly three federal crimes in the Constitution—treason, counterfeiting and piracy on the high seas. Today, the Congressional Research Service says it can’t even count the number of federal crimes. The American Bar Association reported in 1998 that there were at least 3,300 separate federal offenses and nearly 10,000 administrative regulations that also can lead to criminal prosecutions. They are scattered over 50 sections of the United States code and consume more than 27,000 pages. Though the oldest of these regulatory criminal laws date to 1850, more than 40 percent of have been enacted in the last 30 years.
This growth, Rosenzweig says, has consequences. Federal attorneys now spend far more time prosecuting behavior that is criminal only because federal law prohibits it than they do on behavior that is criminal because it is morally wrong. Between March 2001 and March 2002, federal prosecutors initiated more than 62,000 such cases against nearly 90,000 defendants.
Ask Edward Hanousek what happens when the concept of enforcing laws veers so far off course. Hanousek was employed as a road master by the White Pass and Yukon Railroad, which runs from Skagway, Alaska, to Whitehorse, Yukon Territory, Canada. As such, Hanousek was responsible for maintenance and construction of the track and other facilities of the railroad.
A high-pressure pipeline carrying fuel oil ran alongside the track. One evening, after Hanousek had left work for the day, Shane Thoe, a backhoe operator who worked for a contractor hired to load rock onto railroad cars, loaded a train with rock. After the train departed, Thoe noticed some rock remained on the track. He drove the backhoe down and removed the rock. In the process, he ruptured the pipeline, spilling fuel oil into the adjacent Skagway River.
Hanousek, not Thoe, paid the price in criminal sanctions because, according to the courts, he had failed to supervise Thoe sufficiently. Hanousek and his superior—Paul Taylor—were charged with negligently discharging pollutants into a U.S. waterway and making false statements to Coast Guardsmen investigating the incident. Taylor was acquitted of both charges, and Hanousek was acquitted of making the false statements. But Hanousek was convicted and sentenced to six months in prison because he failed to appropriately supervise the project.
He did nothing morally wrong. He had gone home for the day and had no knowledge of Thoe’s actions. Thoe was charged with nothing. Yet, Hanousek spent six months in prison. This, says Rosenzweig, is the type of use of criminal law that must be reformed.
