Overcriminalization in America

One problem that has developed in recent years, which has only recently begun to get a bit of attention, is the spread of convictions (including jail time) for people often unknowingly violating some obscure (usually Federal) law.  The traditional  concept that one must know that one is doing wrong has been undermined and now people are going to jail for violating a law that they did not even know about.  And since Federal law is so extensive and often vague it is very easy for even well intentioned people to get caught in it.

Further complicating this is the increased role of the prosecutor, which tends to push the judge aside in pretrial plea bargaining.  When prosecutors set the terms it is difficult for the defendants to get impartiality.

This is having a negative effect not only on individuals but on the economy as being an entrepreneur becomes increasingly dangerous.

This from the Economist and the Heritage Foundation

The Economist on Overcriminalization

Conn Carroll

July 27, 2010 at 2:00 pm


There are many shocking real-life stories in Heritage Foundation Senior Legal Research Fellow Brian Walsh’s and co-author Visiting Fellow Paul Rosenzweig’s new book, One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. None perhaps as revealing as the one The Economist chose to highlight for their feature this week, Rough Justice: America locks up too many people, some for acts that should not even be criminal. The Economist recounts:

In 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.

Americans jailed for not following a foreign law that the foreign country does not even enforce may be the worst example of our nation’s overcriminalization but it is not the only one. Earlier this month Walsh appeared on John Stossel to discus the case of Krister Evertson. Walsh recounted:

Krister, an Eagle Scout with no criminal record – not even a single traffic ticket, was initially arrested by four FBI agents wearing black SWAT gear and pointing automatic rifles at him because he didn’t know that obscure federal regulations required him to put a certain sticker on his otherwise lawful UPS package.  After spending 21 months in an Oregon federal prison, Krister today lives by himself in a ramshackle aluminum trailer sitting on the fenced-in grounds of a construction company’s equipment yard.  Because he is on parole, he is not allowed even to move to Alaska – where he was arrested – to live with his 80-year-old mother whom he used to care for.

The Heritage Foundation does not agree with everything in The Economist’s reporting, but this conclusion definitely rings true:

America needs fewer and clearer laws, so that citizens do not need a law degree to stay out of jail. Acts that can be regulated should not be criminalised. Prosecutors’ powers should be clipped: most white-collar suspects are not Al Capone, and should not be treated as if they were.

Read more at Overcriminalized.com

And this from the Heritage Foundation

Overcriminalization: The Legislative Side of the Problem

By Paul Larkin
December 13, 2011

Abstract:The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization.” This phenomenon is likely to lead to a variety of problems for a public trying to comply with the law in good faith. While many of these issues have already been discussed, one problem created by the overcriminalization of American life has not been given the same prominence as others: the fact that overcriminalization is a cause for (and a symptom of) some of the collective action problems that beset Congress today. Indeed, Congress, for a variety of reasons discussed in this paper, is unlikely to serve as a brake on new, unwarranted criminal laws, let alone to jettison broad readings of those laws by the courts. Therefore, the key to curbing overcriminalization is the American public: It is the people who, if made aware of the legislative issues that enable overcriminalization, could begin to head off such laws before the momentum for their passage becomes overwhelming.

The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization”—that is, the promiscuous use of the criminal law to remedy numerous perceived social ills by relegating them to the principal government actors in the criminal justice system (police, prosecutors, defense counsel, judges, and jailers) in order to regulate through criminalization. Four of the hallmarks of overcriminalization are:

  1. The use of strict liability crimes (i.e., offenses that dispense with the requirement that a person act with a “guilty mind,” however defined) to outlaw conduct, particularly in commercial and regulatory fields;
  2. The passage of several laws applicable to the same conduct, which enables prosecutors to multiply charges and thereby threaten a person with a severe term of imprisonment if he does not accept a plea bargain;
  3. The delegation to administrative agencies of the responsibility for filling in the details of a substantive criminal law, which thereby vests in the agency responsible for enforcing the law the power also to define its terms; and
  4. Enforcing through the criminal law conduct that, if it is to be enforced by the government at all, should be enforced through administrative or civil mechanisms.

This phenomenon is likely to lead to a variety of problems for a public that is trying to comply with the law in good faith. At bottom, the flaws in overcriminalization are much the same ones that the Supreme Court long has identified in unduly vague criminal laws: They render it impossible for an individual to understand where the line of criminality lies (indeed, the average person’s ability to understand and comply with a legal code varies inversely with its prolixity and reticulation); they empower prosecutors to make arbitrary charging decisions and coerce parties into pleading guilty by threatening them with potentially massive sentences should they stand trial; and, in cases that go to trial, they leave to the courts the job of deciding after the fact whether someone broke the law, a job that is tantamount to deciding whether to shoot the survivors.

Most of these problems have been discussed extensively in other publications, such as “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law,” a report prepared by The Heritage Foundation and the National Association of Criminal Defense Lawyers.[1] But one problem created by overcriminalization of American life has not been given the same prominence as the ones noted above: Overcriminalization is a cause for (and a symptom of) some of the collective action problems that beset Congress today. …

And here are more example of how the get tough judicial system has lost a sense of perspective and common sense, and people are getting treated like hard criminals for very minor offenses, or no offenses.


The Over Criminalization of America

BY JOHN LOTT- 14 things that Americans have recently been arrested for.

#1 (December 2010) A Michigan man has been charged with a felony and could face up to 5 years in prison for reading his wife’s email.

#2 (December 8, 2010) A 49-year-old Queens woman had bruises all over her body after she was handcuffed, arrested and brutally beaten by NYPD officers. So what was her offense? The officers thought that her little dog had left some poop that she didn’t clean up.

#3 (December 22, 2010) A 56-year-old woman who was once a rape victim refused to let airport security officials feel her breasts so she was thrown to the floor, put in handcuffs and arrested.

#4 (December 26, 2010) In Milwaukee, one man was recently fined $500 for swearing on a public bus.

#5 (December 6, 2006) Several years ago a 12-year-old boy in South Carolina was actually arrested by police for opening up a Christmas present early against his family’s wishes.

#6 [August 20, 2010] In some areas of the country, it is now a crime to not recycle properly. For example, the city of Cleveland has announced plans to sort through trash cans to ensure that people are actually recycling according to city guidelines.

#7 [February 5, 2010] A 12-year-old girl from Queens was arrested earlier this year and taken out of her school in handcuffs for writing “Lex was here. 2/1/10″ and “I love my friends Abby and Faith” on her desk.

#8 Back in 2008, a 13-year-old boy in Florida was actually arrested by police for farting in class.

#9 [April 22, 2010] The feds recently raided an Amish farmer at 5 AM in the morning because they claimed that he was engaged in the interstate sale of raw milk in violation of federal law.

#10 [December 14, 2007] A few years ago a 10-year-old girl was arrested and charged with a felony for bringing a small steak knife to school. It turns out that all she wanted to do was to cut up her lunch so that she could eat it.

#11 [June 18, 2010] On June 18th, two Christians decided that they would peacefully pass out copies of the gospel of John on a public sidewalk outside a public Islamic festival in Dearborn, Michigan and within three minutes 8 policemen surrounded them and placed them under arrest.

#12 [October 01, 2009] A U.S. District Court judge slapped a 500-dollar fine on Massachusetts fisherman Robert J. Eldridge for untangling a giant whale from his nets and setting it free. So what was his crime? Well, according to the court, Eldridge was supposed to call state authorities and wait for them to do it.

#13 [Nov 10, 2009] Once upon a time, a food fight in the cafeteria may have gotten you a detention. Now it may get you locked up. About a year ago, 25 students between the ages of 11 and 15 at a school in Chicago were taken into custody by police for being involved in a huge food fight in the school cafeteria.

#14 [2007] A few years ago a 70-year-old grandmother was actually put in handcuffs and hauled off to jail for having a brown lawn.

Another example: “A 17-year-old student at Huntington High School has been arrested after allegedly bringing an unloaded BB gun onto the campus to show a group of students during a JROTC class.”Labels:

Short URL: http://www.hawaiireporter.com/?p=27527

Author: John Lott

Amazed how lucky I am that I have had jobs where I could just think about whatever I wanted to think about. I have published over 90 articles in academic journals. I received my Ph.D. in economics from UCLA in 1984. See more at http://www.johnrlott.blogspot.com

John Lott has written 1 articles for us.


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