Protests and riots have erupted in Minnesota and across the country since George Floyd’s death. The officer who killed Floyd has been fired and charged, but protesters demand institutional changes. Reform advocates have proposed repealing barriers to accountability for problem officers, such as qualified immunity and law enforcement officer bill of rights, and scaling back police militarization.

These measures are integral pieces of a larger reform framework, but they have proven frustratingly difficult thanks to stiff resistance from law enforcement interest groups. One way to circumvent this obstacle is to repeal or reform our nation’s many criminal laws.

Overcriminalization — the expanding number of laws that criminalize benign behaviors— is a significant but overlooked factor in the death of George Floyd and ought to be a priority for police reformers across the country. Floyd was killed over a low-level forgery arrest, Eric Garner over selling loose, untaxed cigarettes. A California sheriff’s deputy subdued and repeatedly struck an unarmed teenager half his size over an illegal cigarillo. Sandra Bland hung herself in a jail cell after an arrest for a traffic violation.

Ask if a law is worth killing to enforce
The common thread in all of these examples is an interaction over a minor offense that spiraled out of control. To take overcriminalization seriously requires us to pause and question whether any proposed or existing law with criminal penalties attached to it is worth it. It should force us to ask: Is this law worth killing to enforce?

Opponents of overcriminalization often point to examples of arrests and prosecutions for absurd “crimes” like feeding homeless people in a park where food sharing is illegal, or unwittingly driving a snowmobile on protected federal land. While these are outlandish examples, they illustrate the sheer scope of the criminal code. Experts do not even have an estimate for the total number of criminal laws across all levels of government.

But snowmobile arrests are not the most prevalent examples of overcriminalization. Instead, drug crimes and public order offenses that require law enforcement attention almost daily constitute a much larger problem. It’s true that the majority of people in state prisons, which house a majority of the overall incarcerated population, are incarcerated for a violent offense. But over a third of the total incarcerated adult population, approximately 796,000, are there for “public order” and “drug” offenses — the two categories that could most feasibly be tied to overcriminalization. This is a massive number, even if it doesn’t represent the majority.

What’s more, jail or prison is only the final step in the criminal process. Most people who encounter the justice system do so through the first step: arrests. Over 10 million people were arrested in 2018, the most recent year for which we have data. Well over 3 million were arrested for drug and public order crimes, such as “disorderly conduct,” “drunkenness,” “vagrancy” and “forgery and counterfeiting.”

Some on this list shouldn’t be arrestable offenses in the first place. Drug possession is better addressed through drug courts and rehabilitation programs, while vagrancy, loitering, and other quality-of-life crimes warrant social workers. Walter Scott was shot and killed after running from a cop at a traffic stop. Evidence suggests he knew he had a warrant out for his arrest for falling behind on child support payments, an offense for which he had previously been arrested and jailed, and ran to avoid rearrest.

Floyd was victim of overcriminalization
The counterfeiting charge that cost George Floyd his life –– allegedly using a fake $20 bill –– carries a jail sentence up to a year (and up to five years if you’ve committed a similar offense within five years) in Minnesota. The answer in this instance is not “legalize counterfeiting.” But given the substantial costs that jails impose on individuals and communities, it’s worth asking whether a fine or diversion program might be more suitable for a first time offense.

Admittedly, tinkering with penalties for petty counterfeiting probably would not have prevented the George Floyd tragedy. The officer would still have been called to the scene and it would have likely escalated whether his offense required community service or a stint in jail. But overcriminalization is not just a problem because it leads to unnecessary arrests or jailings. Our unique reliance on criminal sanctions as a solution to problems better suited for social work or alternatives to arrest contributes to an “Us vs. Them” law enforcement mentality. Using force when the situation doesn’t call for it becomes pedestrian when the default, by law, is to arrest people for any minor infraction or nuisance.

Both ends of the political spectrum fail to appreciate the problems of overcriminalization. Democrats are leading the push for a nationwide ban on flavored vapes and menthol cigarettes, and only recently have begun to grapple with the criminal justice implications of its advocacy of firearm bans. Some conservatives still support marijuana criminalization while others want to criminalize illegal voting, ignoring the fact that it’s already illegal. Partisan lawmakers are telling their supporters “we are serious about this problem.”

A serious approach to police reform, however, requires us to consider the unintended consequences of new and existing criminal laws.

Reducing the number of George Floyds necessitates reducing the number of potential incidents that could turn deadly. To do that, the public should demand that elected officials take a scalpel to the criminal code.

Image credit: Tomasz Warszewski

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