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John Yates going to jail for red grouper highlights a fundamental problem in American criminal law today. Lawmakers have increasingly turned to criminal law as a form of regulation. Recklessly passed, duplicative, conflicting, and vague laws have turned criminal law into a trap for the unwary.

There are now thousands of federal crimes; indeed so many that legal experts cannot agree on a specific number. This is despite the fact that the Constitution gives the federal government no general criminal jurisdiction. To compound the problem, Congress has delegated broad enforcement powers to unelected bureaucrats in federal agencies. Attorney and writer Harvey A. Silverglate has estimated that the average

American now unknowingly commits three felonies a day. This state of affairs is intolerable in a republic and practically invites selective enforcement.

There is an emerging consensus that the time for criminal justice reform has come. A spirited conversation about how to go about that reform has begun. Unfortunately, too often that conversation starts and ends with drug policy. That is an important conversation to have. But when we consider changing the sentences we impose for drug laws, we must be mindful of the great successes we have had in restoring law and order to America’s cities since the 1980s drug epidemic destroyed lives, families, and entire neighborhoods. I personally believe that legalizing drugs would be a great mistake and that any reductions in sentences for drug crimes should be made with great care.

Nonetheless, we must not let disagreements over drug policy distract us from the pressing need for a thorough review of our entire criminal code. Convicting someone of a crime is the most serious action a government can take. Once a person becomes a “convicted criminal,” the government can take his property, his liberty, and even his life. Yet, despite the gravity of criminal law, the federal government has at times been wildly irresponsible in what it treats as a crime and how it proves guilt.

No one doubts the need for criminal law, and the federal government has an important role to play in combating offenses ranging from organized crime to white collar environmental crime. But the current state of criminal law, especially federal criminal law, is simply foreign to our Constitution and unworthy of a free people. Congress can and must take sensible steps to begin correcting this serious problem. It should start by cataloguing all federal crimes in one statutory location, restoring a standard of intent in criminal law, reining in out-of-control regulatory agencies, and stopping the seizure of the property of citizens to fund law enforcement agencies.

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