A recent article in National Review Online highlighted the tragic consequences that can result when federal agents working for government agencies not normally associated with law enforcement (but who, nonetheless, are empowered to enforce obscure criminal statutes and regulations) show up with flak jackets and guns to arrest people suspected of committing non-violent offenses. While nobody would bat an eyelash if DEA agents showed up well armed and in force to arrest suspected drug dealers or FBI agents did likewise to arrest suspected terrorists or organized crime figures, it is almost never necessary for agents with the Food and Drug Administration to utilize such tactics when arresting a farmer alleged to have shipped unpasteurized milk to customers across state lines. (Yes, this really happened.) Do police officers really need to show up armed to the teeth to arrest a disc jockey suspected of — wait for it — copyright infringement? (Yes, this happened too.) When such incidents of enforcement overkill occur, this engenders disrespect for our criminal justice system.

In many such cases, the accused may not have the slightest idea that he or she committed an offense or had any intention to violate the law. Under the common law, there were only a handful of criminal offenses, each prohibiting conduct that was widely recognized as morally blameworthy, so called malum in se offenses. Today, buried within the United States Code and the Code of Federal Regulations, there are approximately 4,500 statutes and another 300,000 (nobody knows for sure) regulations with potential criminal penalties for violations. Most of these are malum prohibitum offenses, which on their face do not violate any moral code, and many of them lack an adequate (or any) mens rea requirement. And that’s just federal offenses.

Commenters have observed that many of these “offenses” are so arcane or incomprehensible that a reasonable person would not know that what he was doing was, in fact, a crime. When morally-blameless people unwittingly commit acts that turn out to be crimes (a phenomenon referred to as “Overcriminalization”) and are prosecuted for such offenses, not only are the lives of the accused adversely impacted, perhaps irreparably, but the public’s respect for the fairness and integrity of our criminal justice system is diminished.

On the other side, commenters argue that issues of prosecutorial and enforcement discretion are best, and by definition, left to the prosecutors and enforcers. They will, given the responsibilities of their offices, tend to act reasonably and in accord with the law. It is not part of a prosecutor’s constitutional function, however, to draw the line between lawful and unlawful conduct. That is the job of the legislature, and the prosecutor is hardly a disinterested player in the process. The government’s “Trust us” argument asks the public to bear the risk that a government official might not be trustworthy, might exercise poor judgment, or might just be mistaken as to what a vague law really means. This should not be permitted in a system premised on being a government of laws, not men.

In April 1940, Attorney General (later Supreme Court Justice) Robert Jackson, addressing a room full of prosecutors, stated:

It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous.

As a former prosecutor, I am not meaning to denigrate the motives of the many dedicated public servants who endeavor to keep us safe and to uphold the rule of law. Much, if not most, of the blame for this problem lies at Congress’s doorstep for passing vague statutes and empowering bureaucrats to implement nebulous regulations with criminal penalties, and arming federal agents to enforce them. Unlike malum in se offenses, regulations do not prohibit morally-indefensible conduct. Rather, regulations allow conduct, but circumscribe when, where, how often, and by whom it can be done, often in ways that are hard for the non-expert to discern. When criminal penalties are attached to violations of those regulations, overcriminalization problems can ensue, especially when prosecutors need not prove that the accused had any intent to violate the law.

This problem is exacerbated when zealous agents enforcing regulatory programs act in a manner that appears to equate those accused of exceeding the limits of regulated conduct (e.g., a farmer selling unpasteurized milk) with those accused of engaging in clearly forbidden conduct (e.g., a heroin dealer). To FDA agents, there may be no greater threat to life as we know it than shipping unpasteurized milk across state lines, but it is hardly a reason to justify the creation, much less the deployment, of a SWAT team.

How prosecutors and federal agents exercise the tremendous authority and discretion they have been given has an enormous impact not only on the lives of those under investigation, but also how the American people (and the rest of the world) perceive our criminal justice system. When they engage in unnecessary theatrics or prosecute otherwise law-abiding people for “crimes” that no reasonable person would have known was a crime, they (no doubt, unwittingly too) do more harm than good.

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