Posted: Oct 08, 2003 12:00 AM

The story of Edward Hanousek – who was employed as a roadmaster by the White Pass and Yukon Railroad – is the story of a modern-day "criminal." According to Hanousek's contract with the railroad company, he was responsible for "the safe and efficient maintenance and construction of track, structures and marine facilities of the entire railroad." Little did he know that an accident on the track after hours could, and would, send him to jail.

Hanousek was supervising a project to blast rock outcroppings from near the tracks, and then move the fractured rocks into railroad cars. This meant crossing a heating-oil pipeline, which his crews took great care to protect in various ways as the project progressed down the railroad.

One night, after Hanousek had left for the day, Shane Thoe, who worked for a firm contracted to do this work, noticed that a train leaving the station had caught some of the rocks in its plow and pushed them just off the tracks near the pipeline. He drove a backhoe down the tracks to sweep away the rocks. In the process, he inadvertently struck the pipeline, causing it to burst and spew 1,000 to 5,000 gallons of heating oil into the nearby Skagway River.

It was an awful accident, especially considering the great care Hanousek and the contractor had taken to protect the pipeline during the work. But a crime? Hanousek served six months in prison for negligence for failing to properly supervise Thoe. Hanousek's supervisor was also charged, but was acquitted. Thoe, the employee who actually broke the pipeline, wasn't charged.

A civil judgment you could see. Maybe even some kind of fine. But to take away six months of a man's life for an accident that occurred after he'd gone home from work? To mar someone with a criminal record for an accident caused by someone else? That's not right.

America started out with three federal laws – treason, counterfeiting and piracy. In 1998, the American Bar Association counted more than 3,300 separate federal criminal offenses on the books – more than 40 percent of which had been enacted in just the past 30 years. These new laws cover more than 50 titles of the U.S. Code and encompass more than 27,000 pages. Today, the Congressional Research Service says it no longer can even say how many federal crimes exist.

And it's not like our great deliberative bodies on Capitol Hill have carefully tailored these laws to ensure they serve the will of the people or even their own electoral interests. No, the statutory code sections often incorporate provisions and sanctions of administrative regulations developed by various regulatory agencies. And how many of these regs – I mean laws – are on the books? Nearly 10,000, the ABA thinks. It's lawmaking – criminal lawmaking – by bureaucrats.

Are we that much more evil than we were 200 years ago that we need this many laws to keep us off of each other? Or has the nanny state veered completely out of control – creating crimes where no evil existed, pinning blame where no harm was intended?

This trend toward what my colleagues here at the Heritage Foundation call "over-criminalization" – turning accidents into crimes – has dangerous implications. "Criminal law is a blunt tool," says Edwin Meese, former U.S. attorney general and White House counsel under President Reagan and director of the project. "It should be used for those acts that are truly criminal in nature, not as a means of enacting some bureaucrats' idea of a perfect world."

What happened to Edward Hanousek is absurd, and a danger to all of us. Laws are supposed to reflect our collective morality. All he did was go home at the end of a full day like most of us do. His conviction means we've criminalized negligence; that is, mistakes – traditionally thought to be the province of civil courts – are now crimes. Hanousek went to prison for failing to supervise an employee. Imagine how full the prisons could get if every supervisor were convicted when an employee makes a mistake.

As Paul Rosenzweig, senior legal research fellow in the Center for Legal and Judicial Studies at the Heritage Foundation reports: "... the criminal law has strayed far from its historical roots. Where once the criminal law was an exclusively moral undertaking, it now has expanded to the point that it is principally utilitarian in nature. In some instances, the law now makes criminal the failure to act in conformance with some imposed legal duty. In others, the law criminalizes conduct undertaken without any culpable intent. And many statutes punish those whose acts are wrongful only by virtue of legislative determination."

In short, over-criminalization trivializes real crimes, and makes criminals out of good citizens who err.

For more information on this subject, read Rosenzweig's paper on the Heritage Foundation's website.