Apart from its compliance costs (which can be massive) and opportunity costs (which can be unfathomable), another cost of overregulation can be difficult in a different way to quantify: overcriminalization.
Trying to abide by the law becomes ever harder amid a growing “forest of regulations and criminal statutes with varying interpretations that even legal scholars can’t agree upon,” in the words of Ellen Podgor, the Gary R. Trombley family white-collar crime research professor at the Stetson University College of Law.
The unintended consequence of this overgrowth and regulatory accumulation is overcriminalization. The disturbing ease with which an upstanding citizen can unintentionally run afoul of one of the many, many laws and regulations is the subject of the 2009 book Three Felonies a Day by criminal defense and civil liberties lawyer Harvey Silverglate, co-founder of the Foundation for Individual Rights in Education.
The corpus of laws and regulations is now so vast and so vague as to be practically unknowable. As Silverglate explains,
Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations [even as] Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood.
This thicket is made more treacherous for the would-be law-abiding by erosion of the English common law tradition of mens rea to protect the unwitting lawbreaker. Under that tradition, the wrongful deed (actus reus) is not enough for conviction; it must accompany a guilty mind (mens rea). Especially with respect to regulation, mens rea protection has been increasingly overlooked or intentionally omitted.
It’s not just a federal problem. Elon University Senior Associate Dean Alan Woodlief recently discussed how North Carolina has seen the same phenomenon as the federal government in drastically increasing “statutes and regulations complicating our business dealings and other aspects of our daily lives.” He urged “circumspection in adopting new laws and regulations.”
Woodlief recounted several instances of new state laws that were unnecessary, redundant, or tailored to serve special interests, then turned his attention to regulations:
When they [all the new laws] are combined with the myriad administrative regulations at the state and federal level, our law becomes increasingly byzantine, difficult for the average citizen, business owner and even lawyers and judges to navigate.
Continuation of welcome reforms of regulation in North Carolina is needed to fight back the unintended problem of overcriminalization turning well-intending law-abiders into “technical criminals.” Passage in 2013 of periodic review with sunset provisions was an important advancement. A state REINS Act and other sunrise reforms are necessary next steps.
So too are default mens rea provisions. Lacking evidence to the contrary, a state’s laws and regulations should assume the best of its people, not the worst.
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