When Ignorance Is An Excellent Excuse

It’s time for our lawmakers to end overcriminalization.

In the wake of media reports that 40,000 new federal, state, and local laws will go into effect this year, there’s no better time for Americans to revisit the old maxim that “ignorance of the law is no excuse.” An unknown number of these new provisions are criminal laws that can deprive us of our liberty and brand us for life. No ordinary American can be expected to know every law, new and old, on the books, not even every criminal law. Anyone concerned about Americans’ being locked up for innocent behavior should resolve to help end overcriminalization.

Overcriminalization strikes at the heart of our constitutional order. In Bouie v. City of Columbia the U.S. Supreme Court explained the constitutional doctrine of “fair notice,” which holds that a criminal law “must give warning of the conduct it makes a crime.” Traditionally, this requirement was satisfied if (1) the prohibited act was inherently wrongful — such as murder, arson, theft, robbery, or rape — or (2) an individual did something that he or she knew was illegal, even if it was not inherently wrongful.

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