This session, Congress has consistently increased criminal penalties through legislation. In what type of bills are they doing it? In appropriations bills, of course. Where else would Congress increase criminal penalties?
For example, in the fiscal year (FY) 2013 Foreign Relations Authorization Act, the maximum penalties for violation of Arms Export Control Act would increase from 10 years in prison to 20 years. Other bills, such as the Financial Services and General Government Appropriations Act, FY 2013, would also up the penalty for fraud. Why the increase? Because fraud is bad, of course, but if it violates this law, well, then fraud is really bad.
The natural question is “Why does that make sense?” There are, of course, several potential explanations for this phenomenon.
Maybe it’s a form of adjustment for inflation. Occasional increases in fines due to inflation are appropriate. A $500 fine in 1950 dollars would not inflict the same punishment in 2012 dollars. Maybe Congress thinks that jail sentences work the same way because the average life expectancy is increasing. But that can’t be the reason here. The increases double the existing punishments, and the average life expectancy hasn’t doubled in the last century.
Maybe crimes are more heinous today. Maybe fraud and other crimes weren’t as bad when the original laws were passed. The same conduct is surely, well, the same. So that rationale won’t work either.
The most likely reason is that legislators are searching for ways to pay lip service to constituents or just giving in to federal agency demands. Congress routinely creates more criminal offenses in election years.
So why in an appropriations bill? Appropriations bills are notorious for being “Christmas tree bills,” because there is something in them for everyone. Pork-barrel spending is added along with other amendments that would never pass any other way.
When Congress creates new crimes, in most instances, there is already a law on the books that deals with the issue, so the new legislation is unnecessary. The new legislation is too often drafted too broadly and reaches conduct that was not intended to be made a crime by the new law. And when legislators can’t think of a new crime, they increase penalties on existing crimes to show that they are tough on crime.
When legislators pile on, however, there can be unforeseen—and harmful—consequences. Sometimes, it is better for Congress to do nothing.