The criminalization of daily life continues to mount as more new statutes land on the books and lesser offenses get prosecuted, often making law-abiding citizens unwitting offenders and clogging jails over minor infractions, according to a new report.
The American Legislative Exchange Council
(ALEC)'s recently released report, "Criminalizing America: How Big Government Makes a Criminal of Every American," analyzed how the growth of legislation is turning citizens who didn't have criminal intent into lawbreakers.
"Every year, federal, state, and local lawmakers needlessly spend millions of taxpayer dollars incarcerating hard-working Americans who had innocent intentions," the study said.
"While some criminal laws and sanctions are certainly necessary to preserve safety and ensure justice, many laws ensnare individuals who unknowingly violate vaguely written criminal statutes. This places a tremendous economic burden on state budgets and threatens the lives and liberties of every American, while doing little to protect public safety," the report said.
Cara Sullivan, who directs ALEC's Justice Performance Project, said the study found the over-criminalization issue was growing.
"Our states are spending over $50 billion a year on corrections. We now incarcerate at the highest rate in the world," Sullivan told Newsmax.
The growth is due to sentencing laws and the explosion of criminal statutes, with a register of more than 4,500 federal crimes along with 300,000 federal regulations that also carry criminal sanctions, Sullivan said.
"Many of these laws are necessary, but as the government has expanded, so too do the statutes on the books," she said.
While some crimes are based on inherently wrong actions — rape, stealing, murder — another class of crimes has risen up to clog the system with such offenses as jaywalking and building without a license, for example, adding to a web of bureaucracy, often because people committing these crimes don't realize that what they are doing is illegal.
"American business owners and individuals are increasingly susceptible to finding themselves on the wrong side of the law," Sullivan said. "I think there is also a mentality of policymakers to legislate away problems. If there's a problem, let's make a law."
The Heritage Foundation in Washington, D.C., last year released an ebook entitled "USA vs. You: The Flood of Criminal Laws Threatening Your Liberty,"
that included 22 examples of over-criminalization.
Among the cases cited by the Heritage report:
• An 11-year-old girl ran afoul of the U.S. Fish & Wildlife Service for nursing back to health a woodpecker that had been mauled by a cat. An agent delivered a $535 ticket and threatened the girl with a year in prison for violating the Migratory Bird Treaty Act before the case was dropped.
• A father and son were jailed for 21 months after beginning to build a home near the water and bringing in sand for the foundation. The Environmental Protection Agency said the dry property was a "wetland," and that the men violated the Clean Water Act even though they had obtained the needed local permits.
• A 40-year-old Florida man was arrested and faced five years in jail for violating the state's Air and Water Pollution Control Act after releasing a dozen helium balloons in what was meant to be a romantic gesture for his girlfriend.
• A lobster importer went to jail for more than six years for using plastic instead of cardboard in shipping even though the method passed muster with Food and Drug Administration inspectors. Instead, by not complying with a Honduran regulation, the man was tried in the United States under the Lacey Act, which makes it a felony to violate a foreign nation's law while importing flora or fauna into the United States.
The Heritage report also outlined the case for intent as an integral component of criminal activity.
"In many criminal laws, the 'guilty mind' requirement has been removed or weakened. This means people can go to prison regardless of whether they intended to break the law or knew their actions were in violation of the law," the Heritage report said.
In the past, Heritage noted, crimes were composed of two components, "mens rea" and "actus reus" — a guilty mind and a bad act. But now, statutes bypass the "mens rea" issue, putting the blame on those who "need not know that his or her conduct is illegal in order to be guilty of the crime."
William Shepherd, an attorney and former chairman of the American Bar Association's criminal justice section, says "what we really want is smarter justice that makes our communities safer."
"We need to prioritize those who need to be prosecuted and use smart, evidence-based approaches to the punishment of those who have been convicted," Shepherd, a former Florida prosecutor, told Newsmax.
Shepherd noted the case of John L. Yates, a Florida commercial fishing captain, who in 2010 was convicted by a federal jury for tossing undersize grouper from his boat.
Federal agents from the National Marine Fisheries Service had boarded the Miss Katie in the Gulf of Mexico and accused Yates of violating the law by keeping 72 fish they had determined were too small to harvest, and later accused him of destroying some of the evidence after recounting the catch.
The fisherman, who was 59 when his case first began, faced 20 years in federal prison after being found guilty of disposing of the fish. Yates went on to serve just 30 days, but continued to profess his innocence and his case remains on appeal.
His prosecution angered many, including Shepherd, who filed an amicus brief supporting Yates' appeal on behalf of the National Association of Criminal Defense Lawyers. Shepherd thinks Yates' conviction was a misuse of the intention of law, but also part of a larger issue of growing over-criminalization.
Shepherd says that members of Congress and state legislatures must take time to think about the impact of the criminal laws they are going to pass.
Often, the intent gets distorted, he said, noting that no one could have predicted that the Sarbanes-Oxley Act, which regulated corporate reporting standards, would have an impact on Yates, as a commercial fisherman.
Yates was prosecuted and convicted for destruction of documents or tangible objects, "and fish are, in fact, tangible objects," Shepherd said of the government's rationale.
"Congress, who voted on Sarbanes-Oxley, didn't think it would impact Mr. Yates as a commercial fisherman," Shepherd said. "It's the courts having the courage to limit laws to the text of the law and hold prosecutors accountable for only prosecuting the law and not extending into enforcement, into ways Congress hasn't intended."
Shepherd said he is heartened that over-criminalization has finally appeared on Congress' radar screen.
The Over-Criminalization Task Force was established in May 2013 to develop ways to improve the current criminal justice system, and in February was reauthorized for a six-month extension by the House Judiciary Committee.
Shepherd testified before the first hearing of the task force last year, noting the "damage done to the lives of those incarcerated and their families."
Shepherd told the panel that "flooding the landscape with duplicative and overlapping statutes" makes it "impossible for the lay person to understand what is criminal and what is not."
"The result is an overburdened, expensive, and often ineffective criminal justice system."
Shepherd told Newsmax how he once he talked to Florida lawmakers in a discussion of updating criminal street-gang statutes.
"They said, 'We have so many inmates in custody on traffic violations, I'm not sure we are going to have the budget justification for putting these criminal gangs in prison,'" Shepherd said.
"Traffic is not trafficking. These are driving offenses — suspended licenses, drunk driving, vehicular manslaughter," Shepherd said, decrying the situation "when you don't have room for gang members because you have too many people jailed on suspended licenses."
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