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.
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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.
A few weeks ago at NRO, the topic of felons and voting rights arose. That is, should convicted felons be allowed to vote, or not, or only denied while imprisoned (and probation)?
I noted that there were a lot of things that are crimes. Not all of them are felonies, but more are felonies than one might think. Thus, a lot of folks cannot vote. It is in the interest of a totalitarian state to deprive opposition of the right to vote. Thus, it is in the interest of a totalitarian state to make nearly everything a crime (being sure that opponents, but not always sympathizers, are charged).
Now, I doubt if anyone who drives a snowmobile in the wrong place would be deprived of voting rights. But the way things are going, it's only a matter of time.
The solution is to allow felons to vote. If we suppose that felonies are only the traditional hard-core crimes, then there are few genuine felons, and allowing them to vote could only affect very close elections. But if the candidates (or issues) are that close, then surely no great damage is inflicted if a small number of felons swing the vote.
"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."
If we go to prison for refusing to buy health insurance, will we get free health care while we're inside?
Reducing the penalty from jail to a fine is an improvement, but there is still way to much in the way of regulations.
When regulations/fines start becoming a significant fraction of a political entities budget, then the temptation to find more and more reason's to issue fines becomes irresistable.
Everybody knows about speed traps, towns that issue speeding tickets to just about everyone who passes through, rather than raise taxes on the locals.
But how many people know of police depts that use money confiscated from "criminals" to help meet payroll.
The problem is that govt believes it has the right to regulate too much of our day to day lives. There will be no freedom until this attitude is reversed.
I wonder if the natural step to alleviate some of the pressure--fiscal and population--in prisons is to bring back federal parole. I know several people doing time for white-collar crimes, when they could be working and paying fines or restitution. Instead, they sit in prisons, earning pennies, and spending what little money they earn on decent food.
Another aspect of this issue is the medical care provided by the BOP. Federal Medical Centers provide "care" for a number of prisoners--some advanced in age. Is it time to consider a broader, more effective home-confinement program? Such a system would certainly alleviate some of the spending related to federal prisoners.
This is a very ugly triple combo WIN-WIN-LOSE scenario.
Government bureaucrats WIN as all this federal litigation guarantees their job. Trial lawyers WIN as they charge $200 per hour defending the accused.
As tax payers of course we LOSE as we foot the bill at the same time our freedoms are degraded.
@gpsjr is on to something though, perhaps a conviction is a good thing, free room, board, and health care (do they get conjugal visitation rights? then sign me up).
I have long held that given all the local, state, and federal statutes and regulations on the books, every man, woman, and child in America is now a criminal by 10 AM every day. Now, before you say, "that's crazy", do you really think that your home is totally compliant with every applicable building code? I guarantee that it is not. Indeed, you can't possibly be right with every law, because the laws are often directly contradictory.
Do you have any old paint in your garage? Do you know how much it would cost you to have it "properly" removed, according to all pertinent regulations, and by qualified personnel? What do you think would happen if you throw the empty can out in the trash, and an EPA inspector notices it? Pray you never find out.
The only reason people aren't aware of the actual danger this creates is that most people don't interact with government very much. If you own your own business, the opposite is true. You are forced to interact with the government, so they are constantly looking over your shoulder.
Just add this to the reasons no businesses are hiring anyone. Experts say it's due to uncertainty. I don't think so. I think it's certainty. Certainty that sooner or later, we're all going to court, where the government will take everything we worked for, and perhaps throw us in jail, so why bother?
I'm not talking about unsafe conditions. Remember that an OSHA violation can mean that you didn't have a safety data sheet that noone ever reads in a binder that noone ever opens containing information that is so opaque that even experts in the field can't tell you what any of it means, but that you still owe OSHA $2,000 per sheet for not keeping it up to date on every single substance you have on your premises.
Memo to Ayn Rand: if you want to know what it really looks like when Atlas shrugs, just look at America today. We can no longer make anything because government can't stop regulating anything, no matter how stupid or couterproductive.
Bravo. Of all the wasteful laws, perhaps the most damaging are those for nonviolent, adult, voluntary possession and consumption of various substances. If I'm not forcing it into your body or anyone else's it should be up to me to use what I will, even if and when it harms me.
Great piece. However, I don't agree with you that downgrading to civil fines should be done for generating revenue. Revenue-generation should never be a justification for imposing fines, even if it's just a secondary consideration to a broader over-punishment justification. If a city is short on funds, the residents should shoulder the burden as higher taxes, not by hitting up lawbreakers.
Also, while it's easy for the middle class homeowner to be outraged by arrests for gardening violations, there are plenty of "crimes" committed outside the view of suburbia that need to be reevaluated. Voters need to remember that undesirable behavior doesn't equal crime, and that a criminal record can wreck lives (why we even keep public criminal records after someone's served their punishment is a mystery to me). Our laws need to better match both our societal priorities and our enforcement capabilities.
I wholeheartedly agree that over-criminalization is a terrible trend in America today -- the jackboot of the Regulatory State. I also very much agree with the commenters below that fines should be determined solely on the basis of appropriate punishment, and should NOT be relied upon as a government revenue source. Only bad things can come from that.
I have a friend who is counting on committing a federal crime as part of her retirement. She'll do the time in a federal minimum security prison where she'll have food, shelter and healthcare. Keep disobeying the rules and your time is increased.
I agree with the general premise, but regarding Mr. Unser:
How could he be convicted if there was no evidence he entered the wilderness and how could that possibly have cost one million dollars? That would be 10 US Attorneys working full time on the case for a year (and that should include costs and legal support). Obviously a jury found him guilty... Please elaborate.
Recently I experienced this, although my example is an apples/oranges comparison as I encountered a excess of CA state law:
Two days ago I went to a local store to get a helium filled balloon for my daughter's birthday party. Sounds simple enough right? Ah, but I live in CA where even the simple is rendered complex thanks to a bumper crop of state laws and regulations. At the counter there was a sign "CA State Law requires helium filled mylar balloons to have a weight attached" and it even had a picture showing a kid's balloon with a string that led down to a weight to keep the balloon for floating away. As if I couldn't figure out that a balloon might fly away were it not anchored by a weight. I'm sure somewhere in the maze that is CA state government there is an agency that would apply sanctions were they to find an unanchored balloon.
But then again, with laws like these on the books, maybe a great many Californians don't realize their balloon will fly away without a weight attached. I think that is the true danger of overcriminalization, When we leave common sense up to legislators and cede our individual sovereignty over to laws we surrender our own common sense and are lesser for it. When we expect laws to make our choices and determine our fate we surrender a bit of our liberty for a false notion of protection.
I could similarly explore the difficulty of purchasing aerosol paint in CA (can't buy more than a few cans without a permit...unless you buy two cans at one store, two cans at another, etc). Or other products, services, and activities (heaven help you if you try and wash your car and a city Water Dept employee notices your runoff going into a storm drain). In all cases, the dumbing down of America is aided and abetted by an ever growing body of law that purports to protect us...from ourselves.
This is the best piece I have read in quite some time. The California Civil Code is longer than most novels, and everything is a crime. To make matters worse, laws and penalties are tougher than they were, and the consequences of even minor convictions can ruin lives. And, because prosecutors typically have unlimited resources, there is no rational link between the crime and the efforts expended to convict. Moreover, things are going to get worse. Every time there is any kind of problem, people scream for more rules and regulations and convictions. God help us!
As a conservative and long-time avid NR reader who knows a little something about federal prosecutions, I found this article to be absurd. Extrapolating from the specific to make sweeping generalizations makes for awful logic and poor scholarship. For once, it would be nice for someone to thank prosecutors generally and AUSAs specifically for working tirelessly to keep the nation and its communities safe rather than complaining and agitating about rare cases which are not representative of federal prosecutions in general. And believe me -- the examples cited here are not representative of the scores of violent gang members and drug dealers, officials engaged in public corruption, and large scale white collar fraud prosecutions that comprise the vast majority of the federal docket.
The worst example of over-criminalization I always think of in times such as this when the economy goes south is the ole' Dead Beat Dad fiasco.
1. It is a Felony
2. It is a Civil Court, no trial, no excuses
3. For whatever reason you lost your income temporarily during the down turn of the overall economy, you surely won't be able to replace it once you serve your time as you may have been a well paid professional, but with the felony you won't work those types of jobs again.
4. They won't reduce your payment amounts because you can no longer be licensed or use your education as you once did, that is your own fault.
5. It especially troubles me when the Dead Beat is obviously disabled to the degree that once high earner won't ever be earning again and yet they still become a felon.
300,000 felons a year in and out due to child support failure, when the vast majority simply had a short term income disruption that leads to a lifelong conviction. In this economy, I don't even want to know the statistics.
Andy D - when living near San Diego (moved from Kansas) I was amused by the ubiquitous "contains chemicals known to the State of California to cause cancer" signs... they were everywhere: at the entrance gates to my apartment complex; on every aisle at Fry's; at work; at stores - you name it. And then there were the "No smoking within xx feet" stickers affixed to outside newspaper machines (like in fast food drive-through lanes).
I've wondered, though, if a lot of laws (especially at the local level) are the result of the fact that so many people now fail to exhibit common sense and courtesy. Acts that were once uncommon simply because people "just didn't do these things" are now commonplace which begets the "there ought to be a law" reaction.
Of course all these new laws are seldom enforced which fuels cynicism.
This article should be linked to the other NRO article about the prosecution of the Amish for selling raw milk. They investigated for over a year, before filling charges.
Hmastercylinder - it is being generous to give us until 10 am. Most of us are probably doing something illegal far earlier than that!
