Under a recently proposed rule, a clerical error could send someone to prison for five years.
In the latest attempt to criminalize seemingly every aspect of our lives, a group of federal bureaucrats in the Pipeline and Hazardous Materials Administration (PHMSA), an agency within the Transportation Department, recently proposed a regulation that would make filing duplicate applications to transport fireworks a crime punishable by up to five years’ imprisonment.
To its credit, PHMSA recognized that its current process for obtaining a permit to transport fireworks was inefficient. To rectify this, PHMSA proposed a new streamlined process. A business owner can now obtain a permit by using either the old or the new process, but woe betide the unwary businessman who, out of confusion or an abundance of caution, submits an application under both processes. Such a mistake could land you in prison for up to five years.
Why such a severe punishment for merely filing a duplicate application? To quote PHMSA, “The submission of duplicate applications under both processes may result in confusion, slower processing, and diminished safety.”
Imagine that: five years in prison for slowing the work of a government bureaucrat. Whatever happened to letting the punishment fit the crime?
This proposed regulation is a prime example of an alarming trend to criminalize activity that most reasonable people would consider benign. More and more people today are subject to prosecution for everyday conduct, even if they act with no malicious intent whatsoever. As Notre Dame law professor Gerard V. Bradley writes:
Too many criminal offenses today are malum prohibitum offenses—that is, they criminalize conduct that is morally innocuous—and do not contain an adequate mens rea (criminal-intent) element. These offenses often capture conduct that would otherwise be natural and even desirable in business, commerce, accounting, or everyday life.
Criminal law was designed to protect the innocent and ensure public safety. It should be applied to people who intentionally break the law. Clearly there is no more criminal intent, morally blameworthy conduct, or danger to society in submitting duplicate applications than there would be for eating a French fry in a subway station or selling lemonade on the side of the road, both of which are also prosecutable offenses.
Think these examples are far-fetched? Just ask the 12-year-old girl who was handcuffed and arrested for eating French fries in a Washington, D.C., subway station or the children who were fined $500 for running a lemonade stand to raise money for charity.
The proposed PHMSA regulation has the potential to send another person like Krister Evertson to prison. Evertson, a scientist and inventor, was working to develop an alternative power source using sodium, but he ended up selling the sodium when his research didn’t pan out. However, when Evertson neglected to put a government-required label on the sodium when he shipped it, he was prosecuted for his inadvertent mistake. Should people like Krister Evertson spend time in prison for innocent paperwork errors?
Overcriminalization is a threat to our individual liberties. Today there are more than 4,000 federal criminal statutes, and the number threatens to keep growing. An eye-opening study by The Heritage Foundation and the National Association of Criminal Defense Lawyers found that in just one session of Congress, more than 400 new criminal laws were introduced.
Even more startling is the fact that “[n]ot only do a majority of enacted offenses fail to protect the innocent with adequate mens rea requirements; many of them are so vague, far-reaching, and imprecise that few lawyers, much less non-lawyers, could determine what specific conduct they prohibit and punish.”
There is no possible way that anybody can know everything that the law prohibits, especially when one considers that, in addition to statutory violations, there are an estimated 300,000 criminal regulations. Nobody should have to live life worrying about whether any action they take might result in a criminal conviction.
It is bad enough when Congress passes laws that are ill-defined and lack adequate mens rea requirements, but when such laws are promulgated by obscure federal agencies like the PHMSA and buried within the massive Code of Federal Regulations, it is unconscionable.
If you work in a regulated industry (and who doesn’t?), better double-check your paperwork, or you may end up in prison.
Dominic Papa is currently a member of the Young Leaders Program at The Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/departments/ylp.cfm