Regulation, Prohibition, and Overcriminalization: The Proper and Improper Uses of the Criminal Law

The function of the criminal law is to effectively enforce the moral code that every person knows by heart — to enforce the minimum substantive content of the social compact by bringing the full moral authority of government to bear on violators. By contrast, the function of the regulatory system is to efficiently manage components of the national economy using civil rules, rewards, and penalties to incentivize desirable behavior without casting aspersions on violations attributable to ignorance or explanations other than defiance. Treating regulatory crimes as if they were no different than “street crimes” ignores the profound difference between the two classes of offenses and puts parties engaged in entirely legitimate activities without any intent to break the law at risk of criminal punishment. That is true for several reasons. Thenumber of federal statutes and regulations relevant to criminal conduct is unknown but likely is immense. Also, the difficulty in identifying all of the rules that must be known in order fully to comply with the law is but one aspect of the broader problem stemming from the massive number of federal civil and criminal laws on the books today. Moreover, some criminal statutes are obscure because they are poorly worded, but regulatory laws and rules are obscure due to their inconspicuous location. Atop that, it is unreasonable to expect that the average person will readily know how broadly phrased or highly technical rules must be applied in particular cases without legal advice. The bottom line is that there is no good reason to construe criminal and constitutional law in a manner that ignores the practical difficulties created by using the criminal law to regulate a modern industrial state. Both doctrines are sufficiently flexible that courts can accommodate the government’s interests and those of private parties without damaging public interest in the process