Selling marbles without labels across state lines could land you in federal prison, exposing a startling reality about America’s ballooning criminal code.
At a Glance
- The sale of unlabeled marbles across state lines is a federal crime, one of over 5,000 federal offenses in U.S. law
- Heritage Foundation’s legal fellow GianCarlo Canaparo testified before Congress about absurd federal crimes including selling Swiss cheese without holes
- Many federal crimes lack “mens rea” requirements, meaning Americans can be prosecuted without knowing they broke the law
- Legal experts are calling for reforms including a comprehensive count of federal crimes and a default intent requirement
The Marble Menace: When Ordinary Actions Become Federal Crimes
In a recent congressional hearing, Americans were reminded that selling marbles without a legally required label across state lines violates federal law. This seemingly trivial regulation is just one example of thousands of obscure criminal statutes that have proliferated throughout the U.S. Code. On May 7, 2025, GianCarlo Canaparo, a senior legal fellow at The Heritage Foundation, presented testimony to the U.S. House Judiciary Subcommittee on Crime and Federal Government Surveillance highlighting this growing problem of overcriminalization.
Canaparo’s testimony focused particularly on the explosion of what legal scholars call “malum prohibitum” crimes – actions that aren’t inherently wrong but have been criminalized through legislation. Unlike traditional crimes such as murder or theft, these offenses often criminalize regulatory violations that most Americans would never suspect could lead to imprisonment. Beyond unlabeled marbles, Canaparo cited examples including “selling Swiss cheese without holes, selling a tufted mattress without burning cigarettes on it, and selling bacon without a transparent window on the packaging.”
The Impossible Burden of Knowing Every Law
The sheer volume of federal criminal statutes creates an impossible situation for law-abiding citizens. A 2022 study cited during the testimony estimated there are approximately 5,199 federal crimes scattered throughout the U.S. Code, with potentially thousands more hiding within the Code of Federal Regulations. This proliferation directly contradicts a fundamental principle articulated by one of America’s founding fathers.
Despite Madison’s warning, the legal maxim that “ignorance of the law is no excuse” remains firmly in place. This creates a paradoxical situation where Americans are expected to know every federal crime, yet even legal experts struggle to identify them all. The perception of injustice grows when laws are selectively enforced or when ordinary citizens unexpectedly face criminal penalties for actions they had no idea were illegal.
When Intent No Longer Matters
Perhaps most concerning is how many federal crimes lack a “mens rea” requirement – the legal principle that criminal liability should depend on a guilty mind or criminal intent. Canaparo’s testimony highlighted cases of individuals prosecuted despite having no knowledge they were breaking the law or intention to do so. These included Eddie Leroy Anderson, who faced felony charges for collecting arrowheads on federal land, and Bobby Unser, who was prosecuted after getting lost in a blizzard and accidentally snowmobiling onto protected federal land.
“The expansion of federal criminal laws over the past few decades has been linked to an increase in federal incarceration rates, especially for drug-related offenses, reflecting broader trends towards more extensive criminalization and harsher penalties.”, said Dr. McLaughlin.
Proposed Solutions to Restore Justice
Canaparo outlined several concrete proposals to address the overcriminalization crisis. First, the federal government should conduct a comprehensive inventory of all federal crimes. Previous attempts have failed due to the sheer volume and disorganization of federal criminal law. Second, he recommended implementing a default “mens rea” requirement for any crime lacking one, ensuring that only those who knowingly break the law face criminal penalties.
Most controversially, Canaparo suggested creating a limited “mistake-of-law” defense that would allow individuals to claim ignorance as a defense in certain circumstances. This would represent a significant shift from the current standard that assumes everyone knows all laws. The testimony concluded with a call to reserve criminal law for truly blameworthy behaviors rather than using it as a convenient enforcement mechanism for regulatory policy.
