My 2004 report stated that "Conservatively speaking, the U.S. Code contains at least 3,500 offenses which carry criminal penalties. More real­istically, the number exceeds 4,000." The estimate of over 4,000, as of the beginning of 2000, rested on an evaluation of the information already cov­ered by the counts conducted by DOJ and the ABA and new data for the years 1997 through 1999.

Since the start of 2000, Congress has created at least 452 new crimes. So the total number of fed­eral crimes as of the end of 2007 exceeds 4,450. Ninety-one of the 452 were contained in new laws that created 279 new crimes, and the remaining were contained in amendments to existing laws.[22] The total of 452 new crimes breaks down by year as follows: 65 for 2000; 28 for 2001; 82 for 2002; 51 for  2003; 48 for  2004; 13 for  2005; 145 for  2006; 20 for 2007. The Appendix to this report lists all the federal statutes containing new crimes.

The data suggest a potential electoral motivation behind the growth of the federal criminal law. Except for in 2003, the number of new crimes enacted in election years significantly surpass those in non-election years. While this may be due to the two-year cycle in Congress and the time it takes to pass a bill, work done on legislation in a previous Congress need not be completely duplicated. Bills are, for example, frequently re-introduced at the commencement of the a new Congress.

This study did not perform a statistical analysis of the number of crimes created in various discrete areas of substantive law. My 2004 report, however, concluded that a large percentage of the new crimes came in the environmental area. For the years 2000 through 2007, many of the new crimes were in the following areas:

• National security, i.e., aircraft security, protec­tion of nuclear and other facilities, counterfeit/ forged insignia and documents;
• Terrorism and support for terrorists;
• Protection of federal law enforcement;
• Protection of members of the armed forces;
• Protection of children from sexual exploitation; and
• Controls on the Internet.

Not surprisingly, many of the new crimes were enacted in response to the events of 9/11.

Interpretation: A Troubling Trend

As practitioners in the field know well, the num­ber of criminal statutes does not tell the whole story. Measuring the rate of growth certainly con­firms that Congress continues to enact criminal statutes at a brisk pace. But no matter how many crimes Congress enacts, it remains for federal pros­ecutors to decide which statutes to invoke when seeking an indictment.

Federal prosecutors have certain favorites, nota­bly mail and wire fraud statutes,[23] which they use even when other statutes might be more applica­ble. That, of course, does not mean that the addi­tion of little-used crimes is unimportant. The federal government is supposedly a government of limited powers and, therefore, limited jurisdiction. Each new crime expands the jurisdiction of federal law enforcement and federal courts. Regardless of whether a statute is used to indict, it is available to establish the legal basis upon which to show prob­able cause that a crime has been committed and, therefore, to authorize a search and seizure. The availability of more crimes also affords the prose­cutor more discretion and thereby greater leverage against defendants. Increasing the number and variety of charges tends to dissuade defendants from fighting the charges, because they usually can be "clipped" for something.

Moreover, the expansion of federal criminal law continues to occur even without new legislation. Federal prosecutors regularly stretch their theories of existing statutes. For example, federal courts often cooperate with prosecutors by making new laws apply retroactively. What Judge John Noonan wrote in 1984 about bribery and public corruption continues to be generally true, namely that federal prosecutors and federal judges have been effec­tively creating a common law of crimes through expansive interpretations.[24]

Ultimately, the reason the ABA report and this report track the increase of federal crimes is to pro­vide some measure of the extent to which federal criminal law and its enforcement are over-reaching constitutional limits. The Supreme Court has admonished Congress twice within recent years, when it declared federal statutes unconstitutional, that it lacks a "plenary police power."[25] The statisti­cal measures in this and the ABA report indicate that those cases have not dissuaded Congress from continuing to pass criminal laws at the same pace.