Overcriminalization Incentives

In my post on Brian Aitken’s plight, I discussed New Jersey’s draconian gun laws and how a law-abiding citizen can become a victim of overbroad laws. New Jersey gun laws weren’t always so bad, but overcriminalization warped them into their current unconstitutional state.

This trend is a staple of modern legislative activity. Every time a politician says that we must pass a new law to “get tough on crime” and that their pet legislation ought to be passed “for the children,” it’s a sure indicator that the rule of law is about to take another body blow. Take, for instance, the crusade against sexting that threatens to make foolish teenagers into sex offenders. Or the proposed federal cyberbullying act, which aims to turn teens into federal felons, in spite of the fact that there is no federal juvenile justice system. New Jersey gun laws jumped the shark a long time ago and haven’t looked back.

The same is true with federal “honest services” fraud. In the words of one former lawmaker who fed the overcriminalization beast only to see it turn on him:

When I served in Congress, I vigorously opposed any expansion of federal agency authority. All too often, however, I exempted the Justice Department from my efforts because I wanted to give law enforcement the power it needed to keep our country safe from dangerous individuals. After enduring a years-long investigation into crimes my wife and I did not commit, and after watching the outrageous prosecution of Kevin Ring, I have serious doubts about whether I was wise to faithfully support the Justice Department. I strongly encourage the new Congress to examine the guidance and leeway the Department gives to federal prosecutors, and to refrain from passing any new vague criminal laws which seem to invite the worst prosecutorial abuse.

This is just the tip of the iceberg. For more on overcriminalization, take a look at Tim Lynch’s book, In the Name of Justice, or Harvey Silverglate’s Three Felonies a Day.