How Menthol Bans Illustrate the Dangers of ‘Overcriminalization’
That’s also true, unfortunately, in the real-world justice system. The more negative interactions a person has with police early in life, the higher the likelihood he or she will be arrested later in life.
Here’s an avoidable example.
Last November, the Food and Drug Administration announced it was seeking a ban on sales of menthol cigarettes. Cities like San Francisco, Boulder, Duluth, Los Angeles and New York have recently enacted or proposed their own menthol bans.
Thanks to the “Monopoly rule,” we can predict how this will affect people in minority communities.
According to studies, African-American smokers overwhelmingly prefer menthols to flavorless cigarettes. With the new or proposed bans in place, officers will have to police illicit sales of menthols — sales that will occur most often in communities of color.
The impetus behind these bans is not that menthol cigarettes are more dangerous than regular ones; they aren’t. Proponents instead argue that the minty flavor makes it easier to get hooked on cigarettes in the first place.
But these kinds of low-level, public order offenses lead to a greater number of law enforcement interactions that are bad for both police and minority communities. The case of Eric Garner, a Staten Island, N.Y., man who choked to death when police detained him for selling illicit “loosie” cigarettes, showed the world how enforcing these laws can negatively affect vulnerable communities.
To be clear, the current bans and proposed bans do not criminalize possession of menthols; they only prohibit the sale of these products.
But in the criminal justice world, things always fall to the lowest common denominator, and police are always looking to get into the pockets of those they are investigating. Some call that “good policing.”
It is therefore not unlikely that after a retail ban, we will see a possession ban.
After all, considering how easy it is to turn normal cigarettes into menthol cigarettes, a retail ban can’t really be effective without a possession ban.
Questionable Benefits, Greater Risks
Passing laws with questionable public safety benefits also contributes to greater risks more generally. The fact is that resources for policing and the court system are finite. When criminal justice assets are diverted toward enforcing product bans, they become less available for use in countering other, more serious crimes.
A recent report indicates just how dangerously disproportionate the focus has become. Last year, 80 percent of the 10.5 million arrests nationwide were for low-level misdemeanors, while only 5 percent were for violent crimes. Instead of focusing on low-level illicit market sales created by knee-jerk laws, officers’ time could be much better spent policing crimes that put people’s safety at risk.
Policymakers have contributed to this problem through overcriminalization — the process by which governments try to discourage an ever-growing class of behaviors by outlawing them and enforcing such bans with criminal penalties.
Today, researchers estimate that nearly 5,000 statutes and more than 300,000 regulations contain criminal sanctions — and that is just at the federal level. When including state and local laws, scholars cannot even begin to estimate how many criminal laws exist in America.
These kinds of bans are not in the best interest of police, either. Police departments nationwide are woefully understaffed. We ask too much of officers when we expect them to police innumerable criminal laws, and public safety suffers because of it.
Worse still, a majority of victims don’t report their experiences to police, which makes communities less safe. This lack of crime reporting is due in large part to a breakdown in trust between police and the neighborhoods they protect.
There is no silver bullet to restoring this trust, but policymakers who pump out public order laws and expect police to enforce them are not doing anyone any favors.
Law enforcement should not be put in the position of having to decide between enforcing new criminal laws with little, if any, public safety justifications and building trust with their communities.
Before lawmakers pass another ban, they should consider what kinds of tradeoffs they are making — and which groups will pay the steepest price.
Image credit: Miriam Doerr Martin Frommherz
