How many federal and Connecticut state crimes are there; crimes punishable by fine, possible imprisonment and reputational devastation? The answer: No one knows. In the 1980s, the U.S. Department of Justice put the number of federal crimes at approximately 3,000. In 2004 a Federalist Society monograph estimated the number had risen to around 4,000, and by 2007, it was thought that the number had gone up to 4,450. A 1998 American Bar report concluded that more than 40 percent of all federal criminal provisions enacted between the Civil War and 1998 had been enacted after 1970. None of these figures includes federal regulatory crimes, which were estimated in a 1991 Law Review article by Columbia Law School’s John C. Coffee, Jr. to stand at over 300,000. None of these figures counts the multitude of criminalized acts resting in the Connecticut statute and regulatory books.
There are at least two major problems inherent in this situation. First is the simple fact that no one can be fairly assumed to know what all the crimes are that might apply to his or her personal circumstances. Second, the traditional doctrine of mens rea (the guilty mind) is being eroded and replaced by the doctrine of malum prohibitum (wrong because prohibited). Anglo-American law has long considered mens rea to be an essential element of a crime. It requires that the state prove the defendant acted with a guilty mind. These crimes carry with them an element of moral culpability that reaches out to the ordinary citizen’s common sense. This protects the citizen of common intelligence and moral understanding from criminal, if not civil, prosecution for accidental or innocent conduct. Malum prohibitum offenses are those that are wrong only because the state says they are. These do not speak to the ordinary citizen’s consciousness of right and wrong. Many times they do not speak to the minds even of lawyers or judges not focused on the concerned specialized legal area.
