Criminalization out of Control

June 17, 2005 • Commentary
This article orginally appeared in the Baltimore Sun on June 17, 2005.

WASHINGTON — Drug warriors in Congress are considering a bill that would send parents to jail for at least three years if they learn of drug activity near their children and fail to report it to authorities within 24 hours.

One wonders if this a good idea, especially in areas such as Baltimore, where intimidation and murder of government witnesses are common. But when it comes to the criminal law, Congress rarely pauses for reflection anymore.

In April, the bill’s author, Republican Rep. F. James Sensenbrenner Jr. of Wisconsin, floated what might be called the “Jail Janet Jackson” initiative. Instead of enforcing the Federal Communications Commission’s indecency regulations with fines on broadcasters, according to Mr. Sensenbrenner, those who violate the regulations should be subject to arrest and imprisonment.

“I’d prefer using the criminal process rather than the regulatory process,” he said. “Aim the cannon specifically at the people committing the offenses.”

There are serious problems with Mr. Sensenbrenner’s proposal. The FCC’s indecency standards are notoriously vague and of dubious constitutionality. How could a policy that says “misspeak and go to jail” not end up chilling constitutionally protected speech?

More fundamentally, is this an appropriate use of the criminal sanction? Do we really want to lock people up for bad taste?

Mr. Sensenbrenner’s jail‐​centric approach reflects a broader social phenomenon, and a troubling one. The criminal sanction is supposed to be a last resort, reserved for the most serious offenses to civil peace. But more and more, it’s becoming government’s first line of attack — a way for lawmakers to show that they’re serious about whatever is the perceived social problem of the month.

Examples of reflexive criminalization abound. A bill to prevent the transportation of horses for human consumption has 80 co‐​sponsors in Congress. If signed into law, it would join such illustrious federal crimes as the interstate transport of water hyacinths, trafficking in unlicensed dentures and misappropriating the likeness of Woodsy Owl and his associated slogan, “Give a hoot, don’t pollute” (punishable by up to six months in prison).

Because Congress criminalizes unreflectively, the federal criminal code has become vast and incomprehensible. A research team led by professor John Baker of Louisiana State Law School recently estimated that there are more than 4,000 separate federal criminal offenses. That number, inexact as it is, vastly understates the breadth of the criminal law, because the federal criminal code, in turn, incorporates by reference tens of thousands of regulatory violations never voted on by Congress.

And this burgeoning culture of criminalization reverberates down the law enforcement ladder as local police increasingly use handcuffs and jail to deal with situations that clearly don’t warrant it. In September, at a Washington, D.C., bus stop, a Metro transit officer forced a pregnant woman to the ground and handcuffed her for talking too loudly on her cell phone. In April, in St. Petersburg, Fla., police were called into an elementary school to handcuff an unruly 5‐​year‐​old girl.

One of our most destructive overcriminalization binges occurred during the “Just Say No” era, when Congress embraced mandatory minimum sentencing as a way to deal with the use of illicit drugs. Making prison the solution to drug abuse has had staggering social costs.

There are eight times as many women in prison as there were in 1980, and the drug war is a key factor in driving the incarceration rate. In 2001, the average federal drug trafficking sentence was 72.7 months, more than double the average manslaughter sentence. In addition to sending parents to jail for failure to testify against drug dealers, Mr. Sensenbrenner’s bill would extend and enhance mandatory minimum drug penalties, adding to the social costs of the drug war.

The congressman is right to compare the criminal law to a cannon: The criminal sanction is heavy artillery. It ought to be reserved for those behaviors that warrant society’s strongest condemnation and the loss of liberty that such behavior merits. Wielding the cannon indiscriminately causes tremendous collateral damage.

Decrying overcriminalization does not mean being soft on crime. Just the opposite: Being tough on crime requires making intelligent distinctions between conduct that truly threatens the public and conduct better handled by fines or civil law, to say nothing of conduct that’s really none of the government’s business. Those who can’t make those distinctions, far from being tough on crime, actually weaken the moral force of the criminal law. That’s a crime in itself.

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