IP-9-2005 (September 2005)
Author: Mike Krause and Chelsea Johnson
There is a principle in jurisprudence that “ignorance of the law is no excuse.”1 In other words, no one can justify his illegal conduct on the grounds that he was unaware of the law. But what happens when the sheer volume, complexity, and ambiguity of the law means that neither citizens, nor the government, can reasonably know what is and is not against the law?
Colorado currently has some 30,000 laws filling more than 50 volumes of the Colorado Revised Statutes, both criminal and regulatory. Every session, the Colorado General Assembly passes hundreds of new laws for government to enforce and citizens to both understand and obey.
Aside from the sheer number of laws, the definition of what constitutes a criminal act has changed; often the legislature actually creates new crimes, and thus, new criminals, where no inherent criminality exists.
Overcriminalization detracts from the seriousness of the law. This in turn breeds a lack of respect for the law.
Overcriminalization is also a step backwards from the concept of clear and simple rules—essential for dynamic and vibrant economic activity—so that both individuals and businesses can be reasonably sure as to the legality of activity in which they are engaging. This paper will examine several consequences of overcriminalization including:
• The dramatic increase in the quantity of laws in Colorado, and the relative inability of both citizens and businesses to be in compliance, and the wide latitude this offers both police and prosecutors.
• The expanded definition of what constitutes a crime (public welfare laws), and the erosion of mens rea (bad intent) in favor of strict liability, and the threat posed to Colorado businesses.
This paper also looks at trends in overcriminalization both in Colorado and nationwide and makes recommendations for legislators, including:
• Alternatives to use of the criminal law in pursuing public policy goals.
• A checklist of issues to consider before creating new crimes.