Overcriminalization December 12, 2014

It has been estimated that 70% of Americans have inadvertently done something that would send them to prison.  Another estimate is that the average professional commits three felonies a day. The problem is that government, so eager to regulate the populace for its own good, has passed too many laws and issues too many regulations with the force of law, and violations are going to be punished.

George Will, discussing the case of Eric Garner, who was killed by police enforcing the law against black market cigarettes, discusses the problem of “overcriminalization” by reviewing two books on the subject written a few years ago:  Douglas Husak, Overcriminalization: The Limits of the Criminal Law and Harvey Silverglate, Three Felonies A Day: How the Feds Target the Innocent.

From George Will, Eric Garner, criminalized to death – The Washington Post:

Garner died at the dangerous intersection of something wise, known as “broken windows” policing, and something worse than foolish: decades of overcriminalization. The policing applies the wisdom that where signs of disorder, such as broken windows, proliferate and persist, a general diminution of restraint and good comportment takes hold. So, because minor infractions are, cumulatively, not minor, police should not be lackadaisical about offenses such as jumping over subway turnstiles.

Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes.

Harvey Silverglate, a civil liberties attorney, titled his 2009 book “Three Felonies a Day” to indicate how easily we can fall afoul of the United States’ metastasizing body of criminal laws. Professor Douglas Husak of Rutgers University says that approximately 70 percent of American adults have, usually unwittingly, committed a crime for which they could be imprisoned. In his 2008 book, “Overcriminalization: The Limits of the Criminal Law,” Husak says that more than half of the 3,000 federal crimes — itself a dismaying number — are found not in the Federal Criminal Code but in numerous other statutes. And, by one estimate, at least 300,000 federal regulations can be enforced by agencies wielding criminal punishments. Citing Husak, professor Stephen L. Carter of the Yale Law School, like a hammer driving a nail head flush to a board, forcefully underscores the moral of this story:

Society needs laws; therefore it needs law enforcement. But “overcriminalization matters” because “making an offense criminal also means that the police will go armed to enforce it.” The job of the police “is to carry out the legislative will.” But today’s political system takes “bizarre delight in creating new crimes” for enforcement. And “every act of enforcement includes the possibility of violence.”

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