Are we just putting too many people in jail? Or, at a minimum, locking up some of them for far longer than seems reasonable given the relative scale of their crimes? These are some of the questions which Van Jones and Mark Holden are asking in an op-ed for USA Today, and these are debates which aren’t just taking place on one side of the political divide. The sheer volume of people that we currently keep behind bars in the United States, the length of time that many of them are spending there and the cost we are bearing for maintaining them have raised concerns among conservatives and liberals alike.
For a significant number of criminals it seems that there is little or nothing to be done. Those who are violent and those who are so lacking in basic humanity that they will damage or destroy the lives of their fellow citizens with apparent abandon can’t just be allowed to run loose to solve a logistical problem for us. The very worst of the worst will have to be removed from the playing field entirely, either by killing them or tossing them in a dark hole and throwing away the key. But crime, like anything else, comes in shades of gray. At the lower end of the scale we may have muddied the waters and opened up the door to what the authors refer to as “overcriminalization.” This paragraph lists a few of the more notable stories (some of which we’ve covered here) where people wind up on the extreme wrong side of the law when a lesser charge might have served.
Overcriminalization is rampant in America’s legal system. A Florida fisherman disposed of undersized fish yet was convicted of violating a law passed to prevent destruction of business records. An Arkansas company ran children’s clothing consignment sales staffed by parents and volunteers and was charged with violating federal employment policies. A jilted wife in Pennsylvania doused over-the-counter chemicals on the doorknobs of her husband’s lover’s house and was prosecuted for violating an international treaty meant to prevent chemical warfare. The list goes on.
We can keep an eye out for individual cases where the laws may be misapplied, but the real question here is whether or not the legal code is simply too sprawling, complicated and geared toward stiff penalties. Some of the numbers which the authors point out might make us pause for thought.
These and countless other examples are the result of America’s unwieldy and unjust criminal code. Today, there are estimated to be about 4,500 federal crimes scattered throughout the U.S. Code’s 54 sections and 27,000 pages. Add state laws plus the federal regulations that include criminal penalties and this number grows into the hundreds of thousands.
The criminal code is so broad and so confusing that Americans sometimes can’t help but run afoul of it. Once they do, their lives can quickly and permanently be ruined. A staggering number of criminal laws and regulations lack “intent” and “knowledge” requirements, which protect unwitting Americans who have no reasonable way of knowing they committed a crime. The list of nonviolent offenses is so broad that everyday activity can often be criminal. And many federal and state crimes are accompanied by mandatory minimum sentences that force minor lawbreakers into unjust prison terms.
Parts of this argument I simply can’t get behind. Much of that feeling is summed up in the ancient adage that ignorance of the law is no excuse and the idea that the legal code is so byzantine that people can’t help but run afoul of it is rarely the case. The vast majority of laws – even if they are poorly written or overly harsh – deal with actual issues of right and wrong. If you don’t know the difference between the two then you are exhibiting one well established form of insanity. But that doesn’t mean that there isn’t a problem if you knowingly do something you shouldn’t (such as dumping Clorox on your husband’s girlfriend’s doorknob) and then find out you’re essentially on trial for war crimes. When it comes to the case of the Atlanta teachers and school administrators who were caught cheating, I’m sure they knew they were breaking the rules, gaming the system and doing a disservice to the children in their care. But I’m also fairly sure they didn’t think they were going to take a RICO pinch for it and get nearly a decade in the crowbar motel.
(I will pause here to note that I’m largely excluding the tax code from this discussion, along with a number of “white collar” crimes in areas such as copyright infringement and patent laws. The tax code is just an abomination and some rules in the latter examples are well beyond the range of the layman and require specialized attorneys. For purposes of this debate, I’m referring more to laws which cover things which are essentially found in the ten commandments: hurting or killing other people, taking their things and the rest of the general rules of civilized behavior.)
Perhaps the federal and state legal codes could use a fresh pass for the 21st century and some sort of public debate on a plan to simplify them. The laws absolutely should be simple enough for any person who sincerely wants to abide by them to understand, and perhaps there are large numbers which could be combined and boiled down to some easier to digest statutes. I’m positive that the drug laws could use a fresh look. Unfortunately, this would be a massive undertaking and I’m not sure that the public will to even begin such a housekeeping effort exists.