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


Criminal Law Crisis

Originally published at National Review by Edwin Meese III | 12/13/10

The incoming House majority has promised to change the way that business is done in Washington — to look out for the average American and for small business. It faces one of its first opportunities to do so this month, when the new members select the proposed rules that will govern the House. If the House wants to show that it is not going to perpetuate business as usual in Washington, a good first step would be to adopt a rule requiring every bill that proposes or modifies a federal crime to be referred to the House Judiciary Committee before heading to the floor. This simple, common-sense change would help to curtail the current crisis in federal criminal law — a crisis resulting from the enactment of hundreds of duplicative and, too often, unconstitutional criminal laws that trap average Americans and hurt small businesses.

It would be reasonable to think that all criminal-law proposals already receive judiciary-committee oversight. But in fact, criminal-law proposals are often introduced in the House, reported to the full body for consideration on the floor, and passed with little or no judiciary-committee oversight.

This past May, the Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) released a major joint study of the Republican-controlled 109th Congress (2005-2006). The study showed that slightly more than half of the bills adding or modifying non-violent, non-drug criminal offenses in that Congress were not referred to their respective judiciary committee. 

Unsurprisingly, insufficient review by the judiciary committees appears to contribute to substantial quality problems in criminal law. Approximately 60 percent of the criminal offenses studied lacked an adequate criminal-intent (or “guilty mind”) requirement. For centuries, criminal-intent requirements have served to protect those who technically commit an offense but do so without knowing their conduct is unlawful or otherwise wrongful.

Insufficient judiciary committee-review also contributes to criminalization at breakneck pace. The Heritage-NACDL report found, for example, that the 109th Congress introduced more than 200 bills adding or modifying more than 440 non-violent criminal offenses. In a separate study covering all categories of criminal law, law professor John S. Baker Jr. found that from 2000 through 2007 Congress enacted 452 new federal crimes. That is an average of one new crime enacted every week of every year, including when Congress is not in session.

Overcriminalization is not a Republican problem or a Democratic problem — both parties have made substantial contributions to it. Preliminary analysis indicates that the astounding pace of federal criminalization has continued at similar rates throughout the Democratic-controlled 110th and 111th Congresses.

#more#But there was one bright spot in the Heritage-NACDL report: Review and oversight of criminal-law proposals by the House Judiciary Committee had a positive effect on the quality of the legislation in the 109th Congress. The right response, therefore, would be for the new Republican majority to adopt a rule requiring automatic sequential referral to the judiciary committee of any bill that adds or modifies a crime.

Although far too many bills circumvent regular order and are passed and even enacted into law without adequate committee oversight, criminal law is unique. No other law carries with it the potential of depriving an average American of his personal liberty through a prison sentence; destroying his career, livelihood, and reputation; and denying his constitutional rights to vote, to travel, and to keep and bear arms.

And in a time of grave economic instability, overcriminalization often results in too much deterrence of beneficial social and economic conduct that is merely disfavored and is not inherently wrongful. The result is small businesses — the primary engines of American job creation — that are either shuttered or never started in the first place. Today, would-be entrepreneurs wanting to make sure they do not become the target of a government investigation or prosecution must expend far too many resources educating themselves about the thousands of technical violations that could cost them their livelihood or liberty.

Inherent within the power to prosecute and punish is the power to coerce and destroy.  Our nation’s founding generation knew from bitter experience that the proliferation of criminal law and the unprincipled use of criminal punishment pose grave dangers to Americans’ most basic rights and freedoms. 

Millions of conservatives and tea partiers, libertarians and independents, communicated in November that they are deeply unhappy with the federal government’s vast overspending and overreaching. A rule requiring automatic judiciary-committee oversight of all House bills adding or modifying criminal offenses or penalties will not alone solve all of the problems of overcriminalization. But it will set new standards for Congress’s criminalization and demonstrate to both parties that, at least in the House of Representatives, big government as usual is coming to an end.

– Edwin Meese III is a former U.S. attorney general.