Tag: drug war

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The Culture of Criminalization

Originally published at Cato Institute by Gene Healy

On April 22, a House Judiciary subcommittee approved a bill that would send parents to jail for at least three years if they learn of drug activity near their children and fail to report it to authorities within 24 hours.

A brief pause for reflection might lead one to wonder whether this is a good idea, especially in jurisdictions such as Baltimore, where gangland killings of government witnesses are all too common. But when it comes to the criminal law, Congress rarely pauses for reflection any more.

Earlier in April, the bill’s author, Rep. James Sensenbrenner (R.-WI), floated what might be called the “Jail Janet Jackson” initiative. Instead of enforcing the Federal Communications Commission’s indecency regulations with fines on broadcasters, according to Sensenbrenner, those who violate the regulations should be subject to arrest and imprisonment: “I’d prefer using the criminal process rather than the regulatory process,” Sensenbrenner said, “Aim the cannon specifically at the people committing the offenses.”

There are serious problems with Sensenbrenner’s proposal: the FCC’s indecency standards are notoriously vague and of dubious constitutionality. How could a policy that says “misspeak and go to jail” not end up chilling constitutionally protected speech?

But there’s an even more fundamental question to ask: is this an appropriate use of the “cannon” of the criminal sanction? Do we really want to lock people up for bad taste?

Sensenbrenner’s jail‐​centric approach reflects a broader social phenomenon, and a troubling one. The criminal sanction is supposed to be a last resort, reserved for the most serious offenses to civil peace. But more and more, it’s becoming government’s first line of attack: a way for lawmakers to show that they’re serious about whatever the perceived social problem of the month is. We’re all familiar with the cranky uncle who brays at the TV: “lock ‘em all up, I say!” That attitude makes for entertaining talk radio. But what’s frightening is that it’s increasingly becoming a basis for public policy.

Examples of reflexive criminalization abound. The American Horse Slaughter Prevention Act, a bill to prevent the transportation of horses for human consumption, currently has 80 cosponsors in Congress (nothing against horses, but is this a huge problem?) If signed into law, it will join such illustrious federal crimes as the interstate transport of water hyacinths, trafficking in unlicensed dentures, and misappropriating the likeness of “Woodsy Owl” and his associated slogan “give a hoot, don’t pollute” (punishable by up to six months in prison).

Because Congress criminalizes unreflectively, the federal criminal code has become vast and incomprehensible. A research team led by Professor John Baker of Louisiana State Law School recently estimated that there are now over 4,000 separate federal criminal offenses. That number, inexact as it is, vastly understates the breadth of the criminal law, since the federal criminal code in turn incorporates by reference tens of thousands of regulatory violations never voted on by Congress.

And this burgeoning Culture of Criminalization has effects all the way down the law enforcement ladder, as local police increasingly use handcuffs and jail to deal with situations that clearly don’t warrant it. Last September, at a Washington D.C. bus stop, a Metro Transit officer forced a pregnant woman to the ground and handcuffed her for talking too loudly on her cell phone. In December, a 10‐​year‐​old Philadelphia schoolgirl was handcuffed, put in the paddy wagon, and taken to jail for having a pair of scissors in her bookbag.

One of our most destructive overcriminalization binges occurred during the “Just Say No” Era when Congress embraced mandatory minimum sentencing as a means to deal with the use of illicit drugs. Reasonable people can disagree about whether and how much of a threat drug abuse represents. But what’s clear is that making prison the solution to drug abuse has had staggering social costs. There are now eight times as many women in prison as there were in 1980, and the drug war is a key factor in driving the incarceration rate. In 2001 the average federal drug trafficking sentence was 75 months, more than double the average manslaughter sentence. In addition to sending parents to jail for failure to testify against drug dealers, Sensenbrenner’s bill would extend and enhance mandatory minimum drug penalties, adding to the social costs of the drug war.

Sensenbrenner is right to compare the criminal law to a “cannon”: the criminal sanction is heavy artillery. It ought to be reserved for those behaviors that warrant society’s strongest condemnation and the loss of liberty that such behavior merits. Wielding the cannon indiscriminately causes tremendous collateral damage.

Decrying overcriminalization does not mean being soft on crime. Just the opposite: being tough on crime requires making intelligent distinctions between conduct that truly threatens the public and conduct better handled by fines or civil law, to say nothing of conduct that’s really none of the government’s business. Those who can’t make those distinctions, far from being tough on crime, actually weaken the moral force of the criminal law. That’s a crime in itself.

GENE HEALY

Gene Healy is senior editor at the Cato Institute, and editor of the new book Go Directly to Jail: the Criminalization of Almost Everything.

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The Overcriminalization of America

Originally published at Politico by Charles G. Koch & Mark Holden | January 7, 2015

As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned. But the reality is often different. It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws. This proliferation is sometimes referred to as “overcriminalization,” which affects us all but most profoundly harms our disadvantaged citizens. 

Overcriminalization has led to the mass incarceration of those ensnared by our criminal justice system, even though such imprisonment does not always enhance public safety. Indeed, more than half of federal inmates are nonviolent drug offenders. Enforcing so many victimless crimes inevitably leads to conflict between our citizens and law enforcement. As we have seen all too often, it can place our police officers in harm’s way, leading to tragic consequences for all involved.

How did we get in this situation? It began with well-intentioned lawmakers who went overboard trying to solve perceived or actual problems. Congress creates, on average, more than 50 new criminal laws each year. Over  time, this has translated into more than 4,500 federal criminal laws spread across 27,000 pages of the United States federal code. (This number does not include the thousands of criminal penalties in federal regulations.) As a result, the United States is the world’s largest jailer— first in the world for total number imprisoned and first among industrialized nations in the rate of incarceration. The United States represents about 5 percent of the world’s population but houses about 25 percent of the world’s prisoners.

We have paid a heavy price for mass incarceration and could benefit by reversing this trend. It has been estimated that at least 53 percent of those entering prison were living at or below the U.S. poverty line when their sentence began. Incarceration leads to a 40 percent decrease in annual earnings, reduced job tenure and higher unemployment. A Pew Charitable Trust study revealed that two-thirds of former inmates with earnings in the bottom fifth upon release in 1986 remained at or below that level 20 years later. A Villanova University study concluded that “had mass incarceration not occurred, poverty would have decreased by more than 20 percent, or about 2.8 percentage points” and “several million fewer people would have been in poverty in recent years.”

African-Americans, who make up around 13 percent of the U.S. population but account for almost 40 percent of the inmates, are significantly affected by these issues. According to Harvard sociologist Bruce Western: “Prison has become the new poverty trap. It has become a routine event for poor African-American men and their families, creating an enduring disadvantage at the very bottom of American society.” 

Reversing overcriminalization and mass incarceration will improve societal well-being in many respects, most notably by decreasing poverty. Today, approximately 50 million people (about 14 percent of the population) are at or below the U.S. poverty rate. Fixing our criminal system could reduce the overall poverty rate as much as 30 percent, dramatically improving the quality of life throughout society—especially for the disadvantaged.

To bring about such a transformation, we must all set aside partisan politics and collaborate on solutions. That is why we have partnered with the National Association of Criminal Defense Lawyers for more than 10 years to bring about positive changes in our justice system.  

We support a five-step approach to criminal justice reform:

First, “do no more harm.” Legislators must resist the temptation to criminalize activities that do not fit a common-sense understanding of what is a “crime.” Criminal laws should not impose liability if the accused did not knowingly and willfully intend to commit the bad act. This explosion of criminal laws has led to imposing liability on activities that ordinary citizens would have no reason to believe would be criminal such as converting a wild donkey into a private donkey, bathing in the Arkansas Hot Springs National Park without a doctor’s note, and agreeing to take mail to the post office but not dropping it off. It has led to criminal liability for amateur arrowhead collectors who had no idea their hobby could be a federal crime, as well as criminal charges and  a conviction for a former Indianapolis 500 champion who got lost while snowmobiling during a blizzard and unwittingly ended up on federal land.  

Second, we must address prosecutorial abuses—especially in the discovery and grand jury processes. Even the late Senator Ted Stevens fell victim to prosecutorial abuse in his trial when during the discovery process, federal prosecutors systematically concealed evidence that supported the senator’s defense and testimony. Prosecutors must disclose all evidence favorable to the accused to ensure that every American should be treated equally and fairly under the law, whether the accused is a disadvantaged urban teenager or a wealthy corporate executive.

Third, we must ensure that all those charged with a crime receive their Sixth Amendment right to representation by a lawyer. Inadequate or no legal representation results in devastating consequences for criminal defendants and their families.

Fourth, end unduly harsh sentences and resulting disparities by eliminating mandatory minimum sentences that dictate punishment unrelated to the nature or harm of the underlying crime and facts. We must honor the ideal of the punishment fitting the crime by allowing judges to exercise discretion. 

Finally, after a sentence is served, we should restore all rights to youthful and non-violent offenders, such as those involved in personal drug use violations. If ex-offenders can’t get a job, education or housing, how can we possibly expect them to have a productive life? And why should we be surprised when more than half of the people released from prison are again incarcerated within three years of their release?

Hopefully, every lawmaker and committed citizen will support these proposed reforms.  Overcriminalization leads to mass incarceration, undermines race relations and ultimately keeps more people in poverty. We believe the proposed reforms will improve well-being for all Americans, especially the most disadvantaged.

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Overcriminalization and the Siobhan Reynolds Case

Originally published at Cato Institute | November 3, 2010

Case: Siobhan Reynolds

Building on Ilya Shapiro’s post on the sealed grand jury proceedings against Siobhan Reynolds, founder of the Pain Relief Network, and the sealed Reason Foundation/​Institute for Justice amicus brief, here is some more background on the Wichita witch hunt:

The U.S. Attorney’s Office in Wichita, Kansas, indicted physician Stephen Schneider and his wife, Linda, a nurse, for illegal drug trafficking in December 2007. Reynolds found an eerie parallel between Schneider’s case and the prosecution that denied her husband pain medication, so she took action. Her public relations campaign on behalf of Dr. Schneider so annoyed Assistant U.S. Attorney Tanya Treadway that Treadway sought a gag order to bar Reynolds’s advocacy. The presiding judge denied the gag order.

When the judge denied Treadway’s gag order, Treadway instead subpoenaed Reynolds for records related to Reynolds’s PR campaign against the prosecution of the Scheiders. Ms. Reynolds resisted the subpoena and tried to challenge it in court, but the $200 daily fine intended to ensure compliance with the subpoena has left Reynolds pretty much bankrupt.


This case represents the worst of government excesses in federal overcriminalization and overzealous prosecution. The federal government continues to treat doctors as drug dealers, as Ronald Libby points out in this Cato policy analysis. The grand jury, intended as a check on prosecutorial power, instead acts as an inquisitorial bulldozer that enhances the power of the government. My colleague Tim Lynch examined this phenomenon in his policy analysis A Grand Façade: How the Grand Jury Was Captured by Government.


Cato Adjunct Scholar Harvey Silverglate examined the case of Dr. William Hurwitz in his book, Three Felonies a Day: How the Feds Target the Innocent. The DEA turned a few of Hurwitz’s patients into informants and prosecuted Hurwitz. When Hurwitz shuttered his practice, two of his patients killed themselves because they could not get prescriptions for necessary painkillers. Siobhan Reynolds’s husband, another of Hurwitz’s patients, could not get essential medication and died of a brain hemorrhage, likely brought on by the blood pressure build‐​up from years of untreated pain.


Ninja bureaucrats continue to treat doctors that prescribe painkillers as tactical threats on par with terrorist safehouses. When the DEA raided the office of Dr. Cecil Knox in 2002, one clinic worker “thought she and her husband, who was helping her in the office that day, would be shot. She looked on in horror as an agent put a gun to his head and ordered, ‘Get off the phone! Now!’” Radley Balko chronicles this unfortunate trend in Overkill: The Rise of Paramilitary Police Raids in America, and the Raidmap has a separate category for unnecessary raids on doctors and sick people (sorted at the link).