The new term “overcriminalization” describes the last few decades’ legislative orgy of criminalizing trivial or harmless behavior. Under “zero tolerance” the legal system has shifted ever closer to a vast police state. From 2000 to 2007 Congress added 452 new federal crimes to the 4,450 already in effect and the roughly 300,000 regulations that can be enforced criminally. “Get tough” punishments and innovative new crimes have brought career-making headlines to politicians, who encountered little resistance.
Traditionally civil offenses now resemble criminal ones in their punishment. For example, it is commonplace for judges to imprison “deadbeat dads” who cannot pay child support for civil contempt of court. Not even children are exempt. Petty offenses such as “sexting” between teens are felonies and can be severely punished; in grade schools police are sometimes called to control children who throw temper tantrums. Everyday life has been criminalized.
The book Three Felonies a Day: How the Feds Target the Innocent, by libertarian attorney Harvey Silverglate, details how you are a felon right now because going through one day without violating the law repeatedly is virtually impossible.
The Law Meets Economic Reality
Now, confronted by a powerful coalition ranging from the conservative Heritage Foundation to the liberal American Civil Liberties Union, a congressional committee is scrutinizing the legal morass and needless suffering that Congress itself has been instrumental in creating. But Congress’s new willingness to focus on overcriminalization may not be humanitarian.
The U.S. Bureau of Justice Statistics states that “in 2008, over 7.3 million people were on probation, in jail or prison, or on parole at year-end — 3.2% of all U.S. adult residents or 1 in every 31 adults.” Juvenile facilities held 92,854 individuals, according to the 2006 Census of Juveniles in Residential Placement.
In 2008 the cost of imprisonment was estimated at $15,000 per inmate. In the crushing grip of recession America cannot afford all the “justice” it metes out.
Some states now give judges cost-of-sentence guidelines to use while deliberating. Regarding the guideline given to Missouri judges, the Washington Independent reports, “For someone convicted of endangering the welfare of a child, for instance … a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber … would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.”
Whether from economic necessity or a bout of common sense, legislators are acknowledging the negatives of overcriminalization. These include: the misallocation of resources; the vesting of widespread discretion in police forces, who abuse it with impunity; and the decimation of the civil liberties of the accused, including the extraction of plea bargains from innocent people who are threatened with life-destroying prison terms.
The Face of the Law’s Victims
Abner Schoenwetter, formerly a Miami seafood importer, chose to fight. In 1999 he was accused of buying lobster tails from a long-time supplier. The purchase allegedly violated harvest regulations in Honduras. Among the violations: The lobsters were in plastic bags rather than cardboard boxes. Schoenwetter provided American prosecutors with evidence from Honduran officials that no law had been broken; the attorney general of Honduras filed a friend-of-the-court brief stating that the cited regulations had been voided. Despite having no prior record, Schoenwetter was convicted and served six years in prison. Now released, the convicted felon is without a job to support his ill wife and faces possible eviction from his home. A good man with no criminal intent has lost the fruits of a lifetime due to the zealous application of Kafkaesque regulations.
The Heritage Foundation and ACLU have chosen Schoenwetter to testify before the congressional committee as the face of those brutalized by overcriminalization.
Toward a Solution
While by no means an ideal solution, certain practical steps could greatly alleviate the suffering of the law’s innocent victims. They include:
- eliminating the ability of civil judges to imprison debtors for contempt of court;
- reestablishing the need to prove “criminal intent” for criminal charges;
- ceasing to prosecute victimless crimes, like drug use and sex between consenting adults;
- eliminating prosecutorial immunity for corrupt or excessive prosecution;
- enforcing constitutional protections such as “the presumption of innocence”; and
- making all courts, including family courts, transparent.
Overcriminalization threatens everyone. It does not matter how peaceful or law-abiding you mean to be. Today you are a criminal. Tomorrow you may be a prisoner.