Overcriminalized America

by Mahsa Saeidi-Azcué

Too many people are being prosecuted for too many acts.

Well, our bold and spunky congressional pals finally crossed the line. They spent our tax dollars so carelessly, and at such an alarming rate, that we were forced to stage what amounted to a national public fiscal intervention. Suddenly, the boring federal budget became big news, as Americans demanded that Washington restore our nation’s economic health and cut all wasteful and inappropriate spending, including the government funding of NPR and Planned Parenthood. This signal from the citizens was valuable despite an eventual Republican surrender in the most recent budget battle. And while I’m pleased that the overspending was exposed, I wonder when the mainstream media will uncover the government money pit of overcriminalization.

“Overcriminalization” refers to the recent trend in Congress to use the criminal law to “fix” every publicized issue — a horrendous waste of government spending. Essentially, our representatives are criminalizing conduct that should be regulated by civil or administrative means. Overcriminalization has left U.S. Attorneys with a wide selection of crimes with which to charge people: There are over 4,500 federal crimes and over 300,000 regulations with criminal penalties. Not surprisingly, many of these obscure laws have led to unreasonable arrests and unjust prosecutions. These costly overcriminalization policies amount to both federal waste and government overreach.

Any one of us can be targeted and imprisoned. A homeowner can be arrested for failure to prune her shrubs, in violation of the city’s municipal code. A small-business owner can do time for lack of proper paperwork when importing orchids. Don’t own a business or a garden? You are still not safe. When the new health-care law goes into effect, everyone, with the exception of unions and other exempt parties, will face severe penalties for failure to purchase government-approved insurance. In fact, refusal to comply with the new health-care regulations is a federal violation punishable by a fine and/or imprisonment. The grander issue of wasteful government spending is still salient, but overcriminalization, while a part of that issue, also has large negative implications for the immediate livelihood of the American people.

While it is difficult to know exactly how much money the government spends to prosecute a single case, it’s instructive to look at a recent example: the infamous Barry Bonds trial. San Francisco U.S. Attorneys spent eight years and countless tax dollars investigating and prosecuting Bonds for allegedly lying under oath regarding his steroid usage. After they had dedicated so many hours and so much of the criminal-justice system’s limited resources, the jury refused to convict Bonds on any of the serious charges, finding him guilty of one charge of obstruction of justice. We need to be selective about the cases that rise to the federal criminal level, because spending our tax dollars on cases that drag on too long means that our money is being wasted.

Let me be clear: We should be tough on actual criminal acts. Let the punishment fit the crime. However, when prosecutors pursue frivolous cases that disrupt our quality of life, it’s not just that the government is wasting our tax dollars and is threatening our liberty, but it is spending less time going after real criminals: the arsonists, the murderers, and the sexual and financial predators. In actuality, our government is passing policies that are weakening our criminal-justice system and decreasing our safety.

In another example, highlighted by the Heritage Foundation, auto-racing legend Bobby Unser got lost in a blizzard, almost died, and was later convicted for operating a snow mobile in the natural wilderness. The conviction itself is quite unbelievable. If Mr. Unser did enter the wilderness, and there is no such proof, it was only due to the fact that he was disoriented in the blizzard. Nevertheless, he faced a $5,000 fine and a six-month prison sentence. It is estimated that the federal government spent approximately one million dollars to prosecute Mr. Unser.

In addition to the cost of prosecution, there are also costs associated with imprisonment. According to the Federal Bureau of Prisons, the federal inmate population was 211,176 as of March. The average cost of incarceration for one federal inmate in fiscal year 2009 was $25,251. So putting justice, liberty, and the wishes of the founding fathers aside, it’s not exactly cheap to lock up people either. We should ensure that only real criminals are behind bars. Instead of locking up gardeners for violating regulations, we should fine them and generate income.

The secondary hidden cost of overcriminalization is more difficult to quantify, but is still a drain on our economy. Former U.S. Attorney General Dick Thornburgh, in an essay for the Heritage Foundation, argues that criminal penalties have caused paranoia among all members of the business community. Businessmen are not innovating for fear of getting prosecuted, and as a result they are unable to compete in the global market. This is especially detrimental to the recovery of our ailing economy.

Because the cost of federal prosecution and imprisonment is so high, we need to ensure that this severe sanction is reserved only for actual criminals. We need to bring overcriminalization to the forefront of the American media and political table. Overcriminalization affects our daily lives and hurts all Americans. The stifling effect of criminalizing acts that should be of a regulatory nature is having a suffocating effect on American business and entrepreneurship.

A government capable of making seemingly innocuous conduct criminal is one that should be feared. The unlucky victims of the feds would certainly agree with me.

— Mahsa Saeidi-Azcué is a television personality and a former assistant district attorney from Brooklyn, New York.