Our country is in the midst of a crisis of criminality: At this very moment, more criminals are walking our streets than ever before. How is this possible, especially in light of the FBI’s latest statistics showing yet another drop in crime rates?
The answer lies not with the American people, but with our laws.
We have more criminals because, quite simply, we have turned everyday citizens into unwitting lawbreakers by adding layer upon layer to our criminal codes and turning nearly every conceivable misdeed into a criminal offense. Poor decisions become misdemeanors, misdemeanors evolve into felonies, and lives spin out of control in the process.
Perhaps nowhere is the absurdity of current law on better display than at the federal level. Educated guesses place the number of laws and regulations with criminal penalties at over 300,000, but no one can say with certainty how many there actually are. If the federal government with its trillions of dollars and millions of employees cannot keep track of all of these criminal penalties, what chance do ordinary people have?
Of course, this problem is hardly limited to our oft-maligned federal government. Criminal justice is largely a local affair.
A now familiar trope is for the media to periodically report lightheartedly on the more antiquated and farcical laws that have accumulated over the last couple hundred years. Another is to highlight apparent injustices stemming from these quirks in the law, such as the Ohio grandmother indicted on felony charges after having the audacity to drive with 14 scrap tires in her truck, thereby exceeding the legal limit of 10 tires.
As this case illustrates, it is hard to avoid engaging in criminal behavior if you are unaware of its criminality. In these cases, prosecutions feel like traps for the unlucky rather than justice for the ill-intentioned.
The greater risk at the state and municipal level comes not from obscure laws that trip people up every now and then, but from those laws that are widely known and inconsistently applied. These are the statutes that most of us either routinely ignore without a second thought, such as speed limits, or knowingly violate from time to time with the hope that the transgression will not merit official involvement, such as marijuana possession. In either instance, though, our fate is subject to the whims of fortune and law enforcement discretion.
But neither luck nor case-by-case law enforcement judiciousness provide a solid basis on which to ground the application of our laws. Subconscious biases — not to mention conscious ones — tend to ensure that when enforcement is dictated by chance or choice, it disproportionately falls on minority and other disadvantaged communities.
Then again, even where universal enforcement of these low-level offenses is possible, it would do little to improve the situation. Misdemeanor arrests still frequently result in jail time, and convictions carry potentially lifelong collateral consequences that can stigmatize an individual and upend their life. While the transgressions involved often warrant a societal response, defaulting to the criminal justice system raises the risk of over punishment.
These problems of disparity and disproportionality have not been lost on a growing number of prosecutors who have pushed back on unnecessary criminalization. Central to this assertion of greater prosecutorial restraint is developing more frugal charging policies. By creating a presumption that alternatives to prosecution will be used for certain low-level offenses, these policies better align repercussions with the wrongdoing at issue.
And yet, while these prosecutorial measures are necessary, they are hardly sufficient to address overcriminalization. Legislatures must also reevaluate the necessity of their criminal laws and punishments, possibly taking a page out of Minnesota’s book: In 2014, the state held an “unsession” that culled or curtailed 1,175 regulations and laws.
This kind of approach offers a good place to start. Only through the concerted efforts of prosecutors and legislators alike can we avoid creating so many inadvertent and gratuitous criminals.
Image credit: Woratep Suppavas