Overcriminalization in America

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Politico Magazine ran an article a few weeks ago about overcriminalization in the US that was interesting in two ways. The first was the recitation of statistics and examples that show just how ridiculously overcriminalized our society has become. We have 5% of the world’s population. We have 25% of the worlds prisoners. Think about that: one out of every four human beings in a jail is in an American jail. That seems insane. What’s more, the sheer scope of our criminal code is absurd:

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.)

Not that we’re just addicted to criminal statutes, by the way. In How the Stock Market Works, Professor DeGennaro notes that:

The tax code contained just 11,400 words in 1914, one year after the Constitution was amended to permit the federal government to levy an income tax. It didn’t stay that way. Forbes contributor Kelly Phillips Erb said that the code was up to about 4,000,000 words by January 2013. That’s about four times as long as all of the Harry Potter novels combined. And you know what? That vastly understates the complexity of the US tax system. The code itself is just the law that tells the IRS what to do. The IRS has to devise regulations to put the law into practice. I doubt anyone really knows how many words are in the regulations, and the story gets worse.

The Forbes article he referred to is here, and it includes another jarring fact:

Since 2001, Congress has made nearly 5,000 changes to the Tax Code. That’s more than a change per day.

At this point we are way, way, way past the point where any normal human being could possibly be certain that they had not violated the law even if they made it their full-time job to do so. This is what led Harvey Silverglate to write his book Three Felonies a Day, suggesting that is how many felonies a typical American commits on a daily basis without ever knowing it. Sound crazy? So do some of the violations summarized in the Politico piece:

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.

So let me make one point (something not brought up in the article): the way Americans think about our government has a serious, serious flaw. We tend to view the job of legislators and the executive to get things done. Which, for most purposes, means to pass laws. When government doesn’t pass enough new laws you hear about gridlock and the assumption is that our government is defective. It is as though Americans have this bizarre picture in their minds that Washington DC is a factory for churning out legal statutes, and if we don’t get our quota than there’s something wrong with the factory. Why are more laws automatically better? Clearly we have too many laws already. Not every problem needs to be tackled by adding new laws. We can also think about repealing, reforming, consolidating, and streamlining the laws and the agencies we already have. But nobody gets elected by making enemies, and so our obsession with manufacturing new laws continues.1

Here’s the thing, though, the average law-abiding, middle-class, educated American doesn’t have that much to fear from overcriminalization. Sure, you might get lost in a blizzard and end up on federal land and get slapped with a criminal charge, but for the most part if your life is more or less together before such a freak accident occurs, you can probably depend on your savings, education, friends and families, etc. to survive the ordeal. In this way, breaking the law (on accident) is a lot like having your house burn down or losing your job or other life emergencies: they are the biggest threat to the most vulnerable.

And that’s the second interesting thing about this article. It is written by Charles G. Koch and Mark V. Holden. Yes, one of the infamous Koch Brothers (Holden is General Counsel and Senior Vice President of Koch Industries, Inc.) And yet the primary point of the article is that overcriminalization is basically a form of systmatic, state-oppression of the poor and vulnerable. For example:

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.”

Now, even if you’re very skeptical and you think that that Koch Brothers are just pretending to care about the African-American community, fine: you should still read the article. Whatever you think of their motives2, the fact remains that they have presented a very good argument for why overcriminalization is hurting America’s poor and even included a 6-step plan to fix it. Check it out.

3 thoughts on “Overcriminalization in America”

  1. I’ll go read the article to see if they discuss this, but the loss of “criminal intent” has also caused a large part of the problem. It used to be if you did something “illegal”, you could only be convicted if the state could prove “criminal intent’ – so if you accidentally wound up on federal land during a blizzard, as long as you had no “criminal intent” there was little chance of any conviction (or even indictment). However, since we’ve abandoned that, all the state has to do is prove you violated the law, not that you meant to.

  2. Back in 2008 I got the chance to spend 3 weeks in Russia. Most of that was spent around Moscow, with some trips to other areas scattered. On occasion my wife and I would walk down to a market or some other place nearby that we wanted to visit. At the time I was rather oblivous to a lot of what was going on around me, or at least understanding some of the reasons that I got reactions the way I did.

    Some background, I grew up in a military family, moving often and having to make new friends. This led me to be a smiling rather open kind of person in order to meet new people and is part of the reason that at the time I would occasionally smile at the people passing by while walking around in Russia. It surprised me greatly when my wife told me on one of our walks to stop smiling at people because it lets them know I’m not from there (a tourist).

    Now, I’ve heard often by folks who visit Russia that outside the tourist areas where they are selling you something, that most Russians are gruff, look mean, or are not friendly at all. The reasons behind this didn’t click until after the two courses I took on Russia, one was history and the other politics.

    To keep it short let’s just say that as much of the population in Russia still remembers the Soviet days you’ll find especially among older Russians that they come across as gruff, mean, unpleasant, or just not carying. Imagine if you will that for most Russians (anyone not politically connected, or rich) the only way to survive was to ‘work the system’ which included breaking the law. When given a choice between your family not surviving and breaking the law when you can likely get away with it, well you know what will happen.

    The problem this created for them, was that at any point the police, or KGB could enter their home, find any number of broken laws and arrest them or anyone in their home. Now, I’ll be honest I don’t know that they even really needed a reason to arrest you but being American I suppose I like to think they did. Honestly it’s likely that they would just make up whatever they wanted and arrest you anyways.

    Imagine living in a society where at any point in time you could be taken and tossed in jail with the possibility of no relief, ever. They just put you in jail and leave you there because they can, or because you made the wrong politically connected person mad. That fear, and living in that kind of society created a self preservation for the people there that the best thing to do is keep your head down, eyes in front, mouth shut, and go about YOUR business. Basically trying to live by flying under the radar at all times never attracting any attention to yourself.

    With the adage that history repeats itself, keep in mind nothing says that it won’t repeat itself in different locations. Thus as the criminlization of life in America continues, we are getting closer and closer to a society where you can’t really live without breaking laws and if the ‘state’ ever gets the notion to enforce all of them we very well could end up living like they have in Russia. Scared of drawing any attention to ourselves, and breaking the law just to survive.

    And here we are criticizing Russia over being oppressive? Well, at least you KNOW they are as opposed to here where lies are part of political policy.

    On a side note, once you’re vouched for by someone a Russian already knows, you’re accepted and welcomed. It’s a whole different world at that point.

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