Counting crimes: State and federal

Last Friday, thanks to the generosity of Grits readers, I attended a post-legislative briefing put on by the Texas District and County Attorneys Association. The theme of the event, if there was one, was overcriminalization. TDCAA lobbyist Shanon Edmonds estimated that the Texas Legislature created 53 new crimes in the most recent session, up from an average of 39, by his count, over the prior decade. That's only new crimes, and doesn't included dozens of other penalties that were "enhanced" (increased), including three new non-capital crimes boosted to life without parole.

Why do they do it? Edmonds blames the media following the lead of Nancy-Grace types in pursuit of ratings instead of truth. As an example, he cited the proposal for "Caylee's Law" following the recent Casey Anthony verdict in Florida, which would make it a federal crime not to report a missing child. According to Edmonds the law is unnecessary in Texas. There are at least seven crimes on the books here, he said, with which Anthony could be charged besides murder, including tampering with physical evidence - a second degree felony. Even though it's unnecessary, Edmonds declared "I guarantee you" the Lege will pass Caylee's Law in 2013. He thinks they simply won't be able to help themselves.

Relatedly, the Wall Street Journal published a story this week criticizing the awesome and growing number of federal crimes on the books. This notable excerpt attempted to quantify the growth:

The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. By the turn of the 20th century, the number of criminal statutes numbered in the dozens. Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

There are also thousands of regulations that carry criminal penalties. Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses.

Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.

The American Bar Association tried in the late 1990s, but concluded only that the number was likely much higher than 3,000. The ABA's report said "the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades."

A Justice spokeswoman said there was no quantifiable number. Criminal statutes are sprinkled throughout some 27,000 pages of the federal code.

There are many reasons for the rising tide of laws. It's partly due to lawmakers responding to hot-button issues—environmental messes, financial machinations, child kidnappings, consumer protection—with calls for federal criminal penalties. Federal regulations can also carry the force of federal criminal law, adding to the legal complexity.

In Texas we have the same problem with counting the number of crimes. Shannon Edmonds' estimates of new crimes seldom match up precisely with the count from the Board of Pardons and Paroles (BPP), which after each legislative session counts the new felonies because each offense must be assigned a risk level for purposes of determining parole. After the last session  the BPP counted 2,383 felonies on the books, including 11 involving oysters. (Lying about the size of a fish in a tournament is the only new seafood related felony I'm aware of from the 82nd session.) Marc Levin of the Texas Public Policy Foundation has his own, lower count using a different methodology - around 1,700. And none of those numbers include misdemeanors, municipal Class C offenses, or agency rules that carry the force of law. For those reasons and others, just like with the feds, nobody can agree on a number.

Bottom line: How many crimes are there? So many they cannot be counted, like the stars in the sky. Which raises the question: How can you know for sure if you're breaking one?

RELATED: From the Heritage Foundation, "Criminalization Without Justification."

See related Grits posts:

• Newest felony: Misrepresenting a fish
• Lies, damn lies and LBB fiscal notes: Why it's really not free to make K2 possession a felony
• 308 bills push tougher penalties
• Time for Truth in Sentencing Budgets from LBB
• On expanding the death penalty, budgets, and unfunded mandates
• Copper theft: Case study in failed criminal penalty enhancements
• Why is creating new felonies the solution to every social problem? Immigration edition
• Predictable as bluebonnets in spring: Biennial march of the enhancements begins anew
• Dozens of new crimes proposed at Lege: Will LBB man up and assign them fiscal notes?
• 2,383 and counting: How many felonies from the 82nd Texas Legislature?
• New crimes, penalties 'enhance' nothing but spending side of state, county budgets
• Privatization and the fallacy of zero 'fiscal notes' for criminal penalty enhancements 
• Bigger priority on vehicle burglaries: Solving crimes or harsher punishment?
• Levin: Time to rethink what's a crime
• 'Absolutely irresponsible': Okies boosting criminal penalties but can't house inmates they've got
• Parole board: Texas created 59 new felonies in 2009
• Penalty hikes represent a failure of imagination