Complex Times Don’t Call for Complex Crimes

BY Richard E. Myers II

This Essay argues that the rise of the administrative state has led to an overabundance of criminally enforceable regulations, so many in fact that the law has become in many ways unknowable. At the same time, a large portion of criminal lawmaking has moved away from the politically accountable legislature and into the “expert” agencies. The combination of inscrutability and lack of accountability has led to a corresponding loss in the efficacy and legitimacy of the criminal law itself. There are many old, adaptable criminal laws that already cover the conduct that agencies criminalize by regulation. Given the costs, the legislature should not only avoid making new delegations of criminal-lawmaking power to agencies, it should consider contracting their power by repeal, sunset, and jury empowerment.

 

DOWNLOAD PDF | 89 N.C. L. Rev.1849 (2011)