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.