This op-ed was originally published at Rare on September 28, 2015.
Across the United States, honest, hardworking small-business owners and employees are spending money on lawyers’ fees to shield themselves from prosecution arising from Congress’ excessive enactment of criminal laws.
All too often, it isn’t terrorists or drug kingpins, but rather entrepreneurs and their employees, who fall prey to overcriminalization. That money spent on lawyers could be better invested in expansion and job creation.
Overcriminalization isn’t a new problem, but it’s one that’s been exacerbated in recent years. Congress passes new criminal laws without much debate or thought about the cost or consequences, especially on those who may unwittingly commit a federal offense.
Consider the case of Lawrence Lewis. While working as a janitor in the District of Columbia public school system, Lewis graduated from night school and landed a position as chief engineer of Knollwood, a military retirement community. But his hard work landed him in trouble with the long arm of the federal government.
Toilets had backed up in a section of the community. To prevent flooding, Lewis diverted the sewage into what he thought was the D.C. water-treatment system, a standard practice at the facility at the time. He didn’t realize the sewage was actually being diverted to a storm drain that emptied into Rock Creek, a tributary to the Potomac River.
A passer-by noticed the sewage in the creek and reported it to authorities. The source of the pollution was determined to be Knollwood. Even though he didn’t realize the sewage would wind up in the creek, Lewis found himself facing federal charges for violating the Clean Water Act of 1972.
Lewis wanted to make his case to a jury, because he knew he hadn’t knowingly done anything wrong. But his lawyer warned him that federal prosecutors did not have to prove knowing guilt. Rather than risk losing everything he had worked so hard for, Lewis pleaded guilty. He was sentenced to probation and was forced to pay a $2,500 fine.
Between 2000 and 2007, Congress enacted 452 new criminal offenses that didn’t address crimes against persons (sexual or violent crime), immigration or drugs. Moreover, many criminal laws are so vague that innocent people are being caught up in them and wrongly sentenced. In the 109th Congress, for example, 60 percent of criminal offenses enacted lacked an adequate criminal-intent provision, also known as mens rea or “guilty mind.”
A Wall Street Journal article documenting Lewis’ legal travails explained that mens rea was at one time “a bedrock doctrine of Anglo-American jurisprudence.” It holds that “a person shouldn’t be convicted if he hasn’t shown an intent to do something wrong.”
An alphabet soup of federal agencies promulgating regulations purportedly connected to legislation compounds the problem of these often poorly written criminal laws. There are about 4,500 federal criminal statutes on the books, and though the number of federal regulations that carry criminal penalties cannot be counted, scholars estimate that the figure is anywhere between 100,000 and 300,000.
Lewis was one of 788,517 people sentenced for federal crimes between 2000 and 2010, according to the Journal. Convictions can cause long-lasting damage to one’s life, such as making it difficult to get a job, an occupational license or a loan. Though Lewis was able to find another job, probation officers regularly showed up at his workplace to check on him.
“I got a criminal record from my job,” Lewis said, “when I thought I was doing the right thing.” Recounting when he was processed by authorities, he said, “I was treated like everybody else, like I was a hardened criminal.
“Imagine what I looked like,” he said. “’What you in for?’ ‘Backed-up toilets.’”
What happened to Lewis isn’t an isolated incident. It’s a symptom of a deeper problem in federal law, but one with a potential solution on the horizon. With a gathering consensus on the need for reforms of the federal criminal justice system among lawmakers from both parties, Congress must act to reduce the impact of criminal statutes that put innocent people in their crosshairs.
Incorporating mens rea provisions into legislation would require law enforcement and prosecutors to focus their efforts on those who intentionally commit crimes, rather than law-abiding people, like Lawrence Lewis, who unwittingly have made mistakes that don’t warrant punishment.
