Writing more than two centuries ago in Federalist No. 62, James Madison, the future fourth president of the United States, warned, “It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”
After fighting and winning a war of independence from a government that criminalized too much, the writers of the Constitution identified just three federal crimes — treason, piracy, and counterfeiting. The Crimes Act of 1790 followed up, adding 23 more offenses. Imagine a nation with just 26 listed crimes!
Fast forward to today, and the number of federal criminal offenses for which people are prosecuted has become so huge that the Congressional Research Service gave up before it could count them all. The best expert guesses suggest there are about 5,000 crimes by statute and another 300,000 to 400,000 criminal offenses embedded in federal agency regulations. No single person could know of all these crimes, let alone consciously avoid them.
What are these crimes? Defense attorney Mike Chase has documented many of them on X. One offense is to sell Swiss cheese without holes in it. It is also a criminal offense to test mattress flammability with the wrong kind of cigarette and to clog a toilet in a national forest. Chase’s list is intended to amuse his followers, but it is less amusing that people have been put behind bars for years for falling foul of the absurd list of crimes. Import lobsters in the wrong packaging, and face jail time. People have been imprisoned for selling raw milk across state lines and filling in puddles on their own property. Almost all of these regulatory crimes require the prosecution to provide no proof of criminal intent (mens rea), meaning people can be prosecuted despite thinking they are doing nothing wrong.
Recognizing the scale of this problem, lawmakers from both parties have taken a meaningful step toward fixing it. In March, Reps. Chip Roy (R-TX), Lucy McBath (D-GA), Andy Biggs (R-AZ), and Steve Cohen (D-TN) introduced the Count the Crimes to Cut Act, and the House passed it this month.
If passed by the Senate and signed by President Donald Trump, the act would require the federal government to compile a public, searchable inventory of every federal criminal offense, statutory and regulatory, including each law’s elements, required mental state, and prosecution history.
“My first priority in Congress has always been maintaining the safety and well-being of my constituents,” McBath said when the legislation was first introduced. “With the Count the Crimes to Cut Act, Americans will no longer have to fear being excessively punished, and criminal justice professionals can better protect the public. I’m proud to take up this bill, and I thank my colleagues for their collaboration as we seek to expand safety and justice for the American people.”
IT’S TIME FOR CONGRESS TO REVIEW THE PARDON POWER
The reform would be modest but important and profound in effect. It would not repeal any laws. It would not redefine criminal liability. It would simply bring transparency to what is an obscenely opaque and sprawling legal labyrinth.
By forcing the federal government to finally account for its law writing, the Count the Crimes to Cut Act would restore a measure of constitutional humility that has been lost in Washington. The public should not need lawyers to know whether they are breaking the law in some picayune way. A transparent inventory is the first step toward distinguishing true crimes from harmless conduct that should not be proscribed by threats buried in regulatory code. Congress, on both sides of the aisle, created this thicket, and it is fitting that the first real effort to prune it is also bipartisan. Transparency will not solve overcriminalization, but it is how reform begins.