It is widely recognized that the United States has a problem with overcriminalization.[*] Scholars and policymakers have pointed out that there are too many laws with criminal penalties, ensnaring too many people in the criminal justice system, which costs taxpayers too much money. This problem has been the target of research and a cause for concern for decades.[†] But a closely related issue is often overlooked: the growth of regulatory crimes, or administrative rules that are enforced with criminal sanctions.
The difference between statutory laws and administrative rules might not seem important, for what the typical citizen needs to know about both is the same: do not violate them or risk facing consequences. There are, however, many important differences between the two. The most basic one is that legislatures — populated by publicly elected representatives — create laws, while government agencies — run by unelected political appointees and bureaucrats — write rules.
Every state and the federal government create their own set of administrative rules.[‡] Examples include the Federal Code of Regulations and the Michigan Administrative Code.
The original purpose of rules was to enable governments to operate effectively as they enforce laws. Rules create standards and practices for carrying out tasks legislatures empower administrative agencies — part of the executive branch of government — to do. Many administrative rules define the specifics of broad legislative mandates: how to count the number of pupils in a school district for the purpose of state funding; how the government should process and manage certain data and records; which specific training qualifies someone for a state license.
Other administrative rules, however, go further and restrict the behavior of private individuals, especially business and property owners. These are the main focus of this report. Because these rules carry the same force of law and effectively allow unelected government bureaucrats to determine what behavior is legal and what behavior is not. And in many cases, these rules ultimately define what constitutes criminal behavior.
This report will explain why the prevalence of regulatory crimes is troubling and should worry anyone concerned about the rule of law and the potential for abuses in the criminal justice system. It will describe why this growing trend is problematic, using examples from Michigan’s administrative rules. It concludes with some basic principles that should guide efforts to reform Michigan’s regulatory code.
[*] For instance, see: Adam Liptak, “Right and Left Join Forces on Criminal Justice,” The New York Times, Nov. 23, 2009; “Too Many Laws, Too Many Prisoners,” The Economist, July 22, 2010, https://perma.cc/AJ5Q-Z5W4. The term “overcriminalization” is thought to have been coined in 1962. Erik Luna, “Prosecutorial Decriminalization,” The Journal of Criminal Law and Criminology 102, no. 3 (2012): 785–819, http://www.jstor.org/stable/ 23416060.
[†] One scholar proclaimed overcriminalization a crisis way back in 1967. Sanford H. Kadish, “The Crisis of Overcriminalization,” The Annals of the American Academy of Political and Social Science 374, no. 1 (1967): 157–170, https://perma.cc/P82R-45KA.
[‡] The Law Librarians’ Society of Washington, D.C. provides links to the administrative rules of each state here: https://www.llsdc.org/state-legislation.