KANSAS (Analysis)— For a nation lauding itself as the “land of the free,” the United States certainly maintains a remarkable number of laws criminalizing activities most would consider part of their daily lives. From kids penalized for setting up a lemonade stand to the prohibition of cannabis, seemingly everything Americans do has attached to it a law, license, permit, or regulation, as well as a consequent penalty.
A penalty — as a list of thousands killed by police in recent years during encounters surrounding countless non-violent “crimes” attests — up to and including death.
The U.S. justice system grapples with a number of systemic problems. Among them are unjustified yet unpunished police violence, the opioid epidemic — and other drug-related issues, as well as backlogged courts and a proclivity toward punitive incarceration — the result of which has rightfully garnered the U.S. a reputation internationally as a prison state. When debating reform in these and other areas, overcriminalization as a root cause is rarely considered. But it must be.
The United States’ law-and-order love affair has mired disadvantaged communities in a nearly inescapable loop beginning in childhood, known as the “school-to-prison pipeline.” The American Civil Liberties Union describes this phenomenon as “a disturbing national trend wherein children are funneled out of public schools and into the juvenile and criminal justice systems. Many of these children have learning disabilities or histories of poverty, abuse, or neglect, and would benefit from additional educational and counseling services. Instead, they are isolated, punished, and pushed out.”
In economically disadvantaged and even wealthy neighborhoods, black market drugs can represent a promising income opportunity — enough to make the risks of jail or prison time negligible in comparison. This reward/risk ratio prevails even in locations held to mandatory minimum sentencing guidelines implemented in a hotly-contested crime bill passed during the administration of President Bill Clinton.
Consider the example of Weldon Angelos. Convicted of possessing cannabis worth only $1,000, Angelos received a stupefying 55-year sentence, without the possibility of parole, from Salt Lake City federal judge Paul Cassell.
Cassell, tied to mandatory minimum sentencing without recourse, later sparked both praise and scorn by stating publicly his regret for condemning the 24-year-old Angelos to what amounted to a life sentence. “If [Angelos] had been an aircraft hijacker, he would have gotten 24 years in prison… And now I’m supposed to give him a 55-year sentence? I mean, that’s just not right. That wasn’t the right thing to do. The system forced me to do it,” Cassell lamented in 2015, adding that, “Mandatory minimums can be used to send a message, but at some point, the message gets lost.” Angelos’ nightmare incarceration — one example drawn from multitudes — will end when and if he survives in prison through 2059. By then, he will be 78 years old.
Clearly, much is wrong with this picture. But efforts to extricate the U.S. criminal system from the odious double-hex of excess law and overpopulated prisons have thus far been met with intractable resistance.
“How did we get in this situation?” Politico asked in 2015:
“It began with well-intentioned lawmakers who went overboard trying to solve perceived or actual problems. Congress creates, on average, more than 50 new criminal laws each year. Over time, this has translated into more than 4,500 federal criminal laws spread across 27,000 pages of the United States federal code. (This number does not include the thousands of criminal penalties in federal regulations.)
As a result, the United States is the world’s largest jailer — first in the world for total number imprisoned and first among industrialized nations in the rate of incarceration. The United States represents about 5 percent of the world’s population but houses about 25 percent of the world’s prisoners.”
Laws proliferating and falling behind the times
The passage of time and superimposed layers of legislation have created a legal landscape fraught with contradictions, paradoxes, and anachronisms deserving of a comprehensive, meticulous revision.
Civil liberties attorney Harvey Silverglate posits that, with the nation’s collective body of criminal code being so voluminous, the average American obliviously commits three felonies each day. It is the failure of the law to keep pace with and adapt to the modern, digital age that Silvergate believes accounts for this absurdity.
Federal wiretap laws, Silverglate told the Wall Street Journal in 2009, were “written before the dawn of the Internet, often amended, not always clear, and frequently lagging behind the whip-crack speed of technological change.” Lawmakers, Silverglate warned, were prone to initiate strict controls on the flow of information, fearing the impact of new technologies “because they don’t understand them and want to control them, even as they become a normal part of life.”
“The burgeoning U.S. prison population reflects a federal criminal code that has spiraled out of control,” Holly Harris, Justice Action Network’s executive director, wrote this spring. According to Harris:
“No one—not even the government itself—has ever been able to specify with any certainty the precise number of federal crimes defined by the 54 sections contained in the 27,000 or so pages of the U.S. Code. In the 1980s, lawyers at the Department of Justice attempted to tabulate the figure ‘for the express purpose of exposing the idiocy’ of the criminal code, as one of them later put it. The best they were able to come up with was an educated guess of 3,000 crimes. Today, the conservative Heritage Foundation estimates that federal laws currently enumerate nearly 5,000 crimes, a number that grows every year.
Overcriminalization extends beyond the law books, partly because regulations are often backed by criminal penalties. That is the case for rules that govern matters as trivial as the sale of grated cheese, the precise composition of chicken Kiev dishes, and the washing of cars at the headquarters of the National Institutes of Health. State laws add tens of thousands more such crimes. Taken together, they push the total number of criminally punishable offenses in the United States into the hundreds of thousands. The long arm of the law reaches into nearly every aspect of American life.”
Excess law spawns excess enforcement, violence, death
Bloomberg published an article by Stephen L. Carter in 2014 titled “Law Puts Us All in Same Danger as Eric Garner,” noting, “Every new law requires enforcement; every act of enforcement includes the possibility of violence, such as the chokehold that killed Eric Garner.”
Watch the video of Eric Garner’s tragic demise:
New York City police officer Eric Pantaleo choked Garner to death in July 2014, after he and other officers approached the large-framed man for selling untaxed, loose cigarettes — a crime whose only possible victim would be the revenue-shorted state. Garner, not armed and heavily outnumbered by a group of police on scene, warned desperately he could not breathe. He nevertheless paid with his life for selling tobacco that — without the legal imposition of taxation — would otherwise be a non-criminal act.
Carter contends that many such non-violent transgressions as Garner’s may begin with what seem to be merely frivolous or annoying laws, but readily ripen into interactions with police. The specter of a non-judicial execution hangs over them. “Better training won’t lead to perfection,” he cautioned of militarism in police training programs. “But fewer laws would mean fewer opportunities for official violence to get out of hand.”
Reversing the trend of over-criminalization in a law-and-order era
The United States will have to backtrack significantly to approach sanity in crime-related legislation and begin dismantling its tinder box of unethical incarceration, state enforcement, and unjust sentencing mandates. Considering, however, the divisive political climate and the heightened focus on law and order touted by President Donald Trump and his administration, the national penchant for cementing new law to the books shows no sign of slowing any time in the near future.
Until U.S. legislators heed the call to overhaul this over-criminalized morass, Carter warns:
“Every new law requires enforcement; every act of enforcement includes the possibility of violence. There are many painful lessons to be drawn from the Garner tragedy, but one of them, sadly, is the same as the advice I give my students on the first day of classes: Don’t ever fight to make something illegal unless you’re willing to risk the lives of your fellow citizens to get your way.”
It isn’t just modern critics who admonish the public against criminalizing every facet of life. James Madison wrote in “Federalist No. 62”:
“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
Unfortunately, the United States appears no more poised as a nation to heed the alarm bells of overcriminalization in 2017 than was the case so long ago.