On average, American professionals commit several crimes per day, according to lawyer Harvey Silverglate. He wrote a book on the subject titled Three Felonies a Day. Silverglate and many others—including the National Association of Criminal Defense Attorneys—think Americans have to contend with too many criminal laws, so many in fact that most Americans are unaware of what, exactly, is illegal. At common law, in order to be found guilty of a crime, a prosecutor had to demonstrate that a person possessed both a guilty mind—that is, he or she intended to commit the crime—and that the person did indeed commit the crime. American criminal law developed out of the British common law system, which in turn developed out of the Roman Civil Law system. The Romans called the guilty act “Actus reus” and the guilty mind “Mens rea.” A prosecutor needed to prove both to convict.

At the time of the founding of the United States, the federal government was vested by the Constitution of the United States with certain limited powers. The power to police common-law crimes was reserved to the states. The states employed the common law in order to provide and maintain order, and over time, states passed criminal codes or statutes—written laws—that superseded, replaced or were in addition to common-law crimes.

Eventually the federal government got into the act of policing crimes. The Congress passed laws creating certain agencies—the Federal Bureau of Investigators, the Drug-Enforcement Agency, the Bureau of Alcohol, Tobacco and Firearms—and gave to these agencies the authority to arrest, prosecute and imprison people for violating new federal criminal statutes.

Federal statutes alone contain as many as 4,500 crimes, and these are only the federal crimes spelled out in statutes. Some statutes delegate authority to rule makers, whose rules are published in the federal regulatory code. This register contains thousands more federal crimes.

Many legal observers bemoan the modern tendency to criminalize behavior without accounting for a person’s intent, or mes rea. In fact, the National Association of Criminal Defense Lawyers studied the non-violent criminal offenses added to federal law by just one Congress—the 109th Congress, which sat from 2005 to 2006—and found that two-thirds of new offenses “lacked an adequate intent requirement.” Things haven’t gotten better; most of the crimes outlined in the Dodd-Frank Act of 2010—passed in response to alleged criminal misbehavior in the financial sector—failed to address intent.

Judges including United States Supreme Court Justice Antonin Scalia have objected to the apparent legislative tendency to pass laws that criminal behavior but which leave the details about intent to be sorted out by courts.

Things appear to be no better in individual states, where most of the modern police power is exercised. In the State of Michigan, for instance, legislators create an average of 45 new crimes per year. The state boasts over 3,000 individual crimes, many of which lack an intent requirement, according to the Economist.

Many new crimes start out with good intentions but fall prey to overly broad language or overzealous enforcement. That means 11-year-old girls giving away brownies and lemonade at a park are subject to a confrontation with armed police and a $1,500 fine. Image Credit:

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