Fixing America – Overcriminalization in U.S. – Plus Fancypants Word and Gen Z Slang
Blog No. 114
February 25, 2020
Fixing America – Idea 15
Reading Time: 10 Minutes
By Mack W. Borgen, Recipient of Eight National Book Awards. For a “cleaner” / non-email presentation of this and my other blogs, essays, and articles, please go to my website at https://www.mackwborgen.com/
Introduction
This is the sixth article in my Fixing America series. In this series, I present ideas which might help us resolve some of our differences and advance some of our common goals.
Some of the ideas are my own. Some of them, I have come across in the course of my research over these last now 12 years for my last two series of books – The Relevance of Reason (Vols I and II) (2013-2014) and Dead Serious and Lighthearted (Vols I, II, and III) (2018-2019). A few of them are older, even well-known, ideas which I believe deserve reconsideration. A few of them incorporate the welcomed and attributed ideas of friends and associates.
These ideas cover a wide range of subjects. The ideas are presented without lengthy comment, but I believe that you, like me, may conclude that many of the ideas already percolating out there in our America – like the title of my initial blog in this series “are good … and some are brilliant.” Enjoy.
Idea No. 15
Streamline the Federal and State Penal Codes
and
Start Fixing the Overcriminalization of American Society
Background: America is a complicated place – 330,000,000 people; 32,500,000 businesses (including 3,600 U.S. domestic public companies and 230,000 businesses with more than 100 employees); 19,495 cities (including 310 with populations over 100,000); 3,071 counties and parishes; a federal government with more than 4,000,000 employees scattered amidst countless departments, agencies, and regulatory bodies; 85,434 pages of the Federal Register; 532 members of Congress; and 50 state governors, legislatures, departments and agencies. And on and on.
Many, indeed most, governmental bodies feel a relentless need to justify their existence by overseeing and regulating matters within their jurisdiction and through the passage of an ever-increasing number of laws, rules, regulations, executive orders, and directives. The elected bodies, such as U.S. Congress and state legislatures, seem to feel a political need to justify their existence and to “do something” since in the eyes of many politicians and as repeated in endless campaign ads, there is supposedly nothing worse, for example, than a “do-nothing” Congress.
(Author’s Note: For purposes of simplicity, this article primarily focuses only upon federal government and its departments and agencies. However, the issues discussed in this article arise at the state and local levels of government as well.)
With every session of Congress, more legislation, bills, and resolutions are introduced and passed. Every year more regulations are promulgated, and more and more of these laws and regulations carry the threat of criminal sanctions.
Many Americans, including this author – but for a different reason which will be discussed below, believe that we have passed into an era of what is commonly referred to as” overcriminalization.”
A couple of hundred years ago, the original federal code only had about 30 crimes. Now there are more than 4,450 crimes. They are scattered throughout the multiple U.S. codes. In addition, there are now more than 300,000 federal regulations which contain potential criminal penalties.
Even if one is willing to agree that most of these laws and regulations were adopted for good reasons and after serious consideration, the number and nature of these statutorily or regulatorily designated “crimes” are now out of control.
Worse yet, some of them are absurd. Some of them balance awkwardly between the humorous and the pathetic.
For example, it is a “crime” to allow one’s pet to make a noise in a national park if such noise would scare a wild animal. Really? It is a “crime” if one does not affix a federally mandated sticker on an otherwise lawful UPS package.[1] Really? Even as I was writing this article, a far less humorous, but far more commonplace, example of overcriminalization was noted in The Week magazine. The article described the large undercover sting operation implemented to “save you” from unlicensed plumbers and tile-layers.[2] Posing as homeowners, undercover police officers solicited and then arrested 118 handymen who agreed to perform services for which they did not have a license. Some regulatory supervision and licensing of construction-related businesses is appropriate, but for the police to divert their resources in this manner and for 118 men to be arrested and booked evidences that, once again, things have gone too far. Each of these handymen now faces a 12-month jail term. Repeat offenders can be charged with a felony. And, yes, of course, this occurred in Florida – but that is another story.
But these are just examples. For decades, some commentators have noted that America is in an “era of overcriminalization.”
Roughly defined, overcriminalization is “the overuse and abuse of criminal laws to address every societal problem and to punish every mistake.” Thus, overcriminalization, a broad and encompassing term, refers to the use of criminal law – as opposed to civil law or administrative, licensing, or regulatory laws and sanctions – to punish behavior that historically would not have been viewed as criminal behavior. And the list of new “crimes” keeps stacking up. Since 2000, the U.S. Congress has itself “created an average of 56 new crimes annually (and) … over 300,000 regulations … (now) carry criminal penalties.[3]
Overcriminalization can occur in many ways. It can present itself in many forms. The following are examples and manifestations of overcriminalization:
1 – Ambiguous criminalization of conduct without meaningful definition or limitation.
2 – Enactment of criminal statutes which do not incorporate meaningful mens rea, of wrongful intent, requirements.
3 – Expansion of criminal law into economic activity that has been traditionally (and oftentimes more efficiently) been regulated by civil laws and civil enforcement.
4 – Creation of mandatory minimum sentences which are unrelated to the severity of the “crime” or the harm caused by the underlying “crime.”
5 – Federalizing crimes traditionally reserved for state jurisdictions.
6 – Duplicative, confusing, and overlapping statutes.
7 – Dangerously enhanced prosecutorial discretion and overcharging which, in turn, contributes to the seeming politicization of the Justice Department (and arguably other federal regulatory agencies and bodies). More philosophically, the undue, drip-by-drip proliferation of criminal statutes shifts our society from one based upon “the rule of law” to one based upon “the rule of prosecutors.”[4]
Regardless of its form, overcriminalization also generates adverse, secondary consequences. It contributes to the backlogging of our judiciary. Resulting convictions and incarcerations cause an overflow our prisons. It can lead innocent individuals to “sometimes plead guilty because the exercising of their constitutional right to a trial is prohibitively expensive and is oftentimes … seen by such individuals or corporations as too much of a risk.”[5]
Possibly the most (or for our cynical readers, the least) surprising aspect of this problem, is that even though America has been in an “era of overcriminalization” for years, little has been done to contain this problem. Streams of articles have been published over the last two decades, but little has been done. In 2013, Congress established the Overcriminalization Task Force. The Task Force held hearings on the subject, but little has really been done since its final hearing in July 2014 – almost six years ago now. In 2015, Congress adopted a rule change so that the House Judiciary Committee now at least has the power to review any bill which proposed or modifies a new or existing criminal law or penalty. However, this additional level of theoretical oversight has achieved very little.
The Complicating Factor of the Politicization of This Issue
And the Real Problem of Overcriminalization
In the opinion of this author, it is regrettable that this issue has long become – like so many other challenges facing this country – politicized. Overcriminalization is often seen as a “conservative” issue. It is advanced as a conservative cause. As one can see from the footnotes to this article, overcriminalization has been the subject of numerous policy papers and articles published by, for example, the right-leaning Charles Koch Institute and The Heritage Foundation. Nevertheless, for varying reasons, the issue of overcriminalization should not be a viewed as a “right” or “left” or “liberal” or “conservative” issue.
On this issue, this author agrees with many writers from the political right. Overcriminalization is a serious issue. However, my reasoning is based upon my perception of a much more severe, long-term consequence of overcriminalization.
Many conservative writers suggest, directly or indirectly, that prisons should somehow be reserved for people who are “a danger to the community.”[6] As I have written about in numerous contexts, there are some circumstances in which I strongly disagree. Too many criminal wrongdoings, including especially certain types of financial and consumer protection crimes, should not be dismissed as “white collar crimes.” Punishments should not be monetized by the mere payment of fines and penalties. To the contrary, even though such crimes rarely involve the use of firearms or any other direct threat of physical danger, they are not “victimless.” They are serious. Incarceration, not fines, should be the normal consequence of conviction. Speaking harshly, I, like many Americans, am tired of hearing about the convicted defendant’s “no-priors,” “philanthropic activities,” and his or her family and its “deep ties to the community.” Speaking bluntly and to use just one example, there are as lot of ways to steal. A stupid young man who robs a 7-11 for $100 with a gun should not serve time while a smart, older man who robs (or authorizes expressly or by willful blindness) $100.0MM with the assistance of his staff gets away by merely paying a fine.
But this sidetrack issue does not change the fact that this author agrees with my conservative friends. Overcriminalization is a serious problem.
However, I respectfully suggest that many writers addressing the subject of overcriminalization overlook another, even more serious, societal consequence of overcriminalization.
Because of overcriminalization, too many “crimes” are routinely overlooked. Too many “crimes” are not prosecuted. Over-burdened police, under-staffed investigative resources, and a shortage of prosecutors result in the dangerous societal message. The societal message, the overcriminalization consequence, is that some “crimes” can be committed without any real risk of arrest or prosecution. And this reality has a profound impact upon our society.
Just as we want our families and our schools to help teach our children the meaning of consequences, we must insist that society does its best to prosecute all criminal wrong-doing. Some room must remain for appropriate prosecutorial discretion, but — as a general rule — there must be consequences for bad actions.
There might not be an obvious reward for doing the right thing and playing by the rules. But there must be a punishment for doing the wrong thing; a punishment for breaking the law. Lawyers should not walk their clients to the proverbial line and “advise” them both of the meaning of the law and the remoteness of arrest and conviction. This must stop.
Even two simple — and petty examples — can easily underscore that laws, if they exist, need to be enforced.
This author has no idea why there is a routinely posted sign prohibiting littering. But the “crime” is rarely enforced — and that unenforced criminal law sends a horrific message to our society.
Allow me another example. This author has no idea why there are California highway signs which indicate that there is a $491 fine (distracting curiosity — why not a round-figure fine like $490 or $495 or, hell, $499.99) for driving in the car-pool lane. But in this instance, it is an “infraction” as opposed to as misdemeanor or felony. Regardless, just like littering or vandalism or theft or bank robbery — if someone commits one of these crimes or “infractions,” a strong emphasis must be placed upon catching and arresting them. If someone litters or drives alone in the carpool lane, then stop them. Assess the fine. Impose the damage. Do not teach our citizens that they have an implied permission to ignore the law.
Tolerance can, in and of itself, be dangerous, and overcriminalization, in and of itself, has the unintended consequence of lessening enforcement. Literally, there are too many “crimes.” The police do not have the time to enforce the laws unless funds for more police resources are a component of each crime bill. Alternatively, if appropriate, move these matters from the criminal code to the civil code.
For these reasons, America’s era of overcriminalization must start to come to an end.
Idea. Begin the slow, tedious process of eliminating or consolidating criminal statutes by implementing the following:
- Analyze the current usage of and rates of charge and conviction of our country’s various criminal statutes.
- Consolidate all federal criminal laws into Title 18 of the U.S. Code rather than having them scattered throughout the various codes.
- Recognize the criminal defense of “mistake of law” whereby a person cannot be convicted of as crime if, using an objective reasonable person standard, no one would have thought that the charged conduct would be deemed a “crime.”
- Severely limit the right of federal agencies to create federal criminal offenses. The role of federal agencies could/should be limited to (a) adopting civil monetary penalty standards and/or (b) recommending to Congress the creation of a federal crime.
- Eliminate unjust, unnecessary, redundant, superfluous, or outdated criminal statutes.
- Because of the need for consistent review of both existing laws and new or proposed criminal provisions, create an independent advisory and reporting authority (sometimes referred to herein as the “Criminal Statute Evaluation Board”) to be used as a mandatory step in the legislative or regulatory process. As a condition of adopting any new criminal statute or regulation, have the Criminal Statute Evaluation Board analyze the projected, annual additional enforcement costs associated with such proposed statute or regulation.
H. Although a complicated and sensitive issue, have the Criminal Statute Evaluation Board consider recommendations regarding rectification approaches (e.g. commutation, pardons, and in extreme cases even restitution) for any individuals who may have been previously and wrongfully convicted of such overcriminalization offenses. - Accept the fact that addressing the problem of overcriminalization is necessarily a slow, deliberative process. It is going to take years before the problems caused by our nation’s overcriminalization can be resolved.
- Have the Criminal Statute Evaluation Board track the number of arrests and convictions each year with respect to each criminal statute and highlight any criminal statute which, for whatever reason, is not being enforced and which may be a candidate for statutory removal.
Implementation. Because of the sanctity of our criminal processes and the importance of not inadvertently eliminating necessary criminal laws, the implementation of these recommendations is going to be tedious and difficult. In addition, because of the necessary retention of highly skilled and dedicated attorneys and staff, it will also be costly. However, addressing the problem of overcriminalization is important. Because of the size of our nation and the complexities of analyzing so many multiple statutes and convictions thereunder, these problems could not reasonably be addressed without the extensive use of computers and digitalized records. But America has such tools. The problem of overcriminalization can be addressed. It needs to be addressed. Now.
See Additional Previously-Presented Ideas
