Undoing overcriminalization

So I saw this opinion piece in USA Today by Glenn Harlan Reynolds, titled “You Are Probably Breaking the Law Right Now: When lawmakers don’t even know how many laws exist, how can citizens be expected to follow them?” It joins a growing tide of public awareness about overcriminalization in the U.S. — especially at the federal level — and that’s a good thing. (It also joins a growing number of pieces that use bird feathers as their lead example of serious stupid crimes ever since my little comic on the topic went mildly viral back in 2012 — and that’s also a good thing.)

What struck me was that this was in USA Today, of all places — arguably the nation’s most accessible newspaper, with the broadest audience. It’s not the paper of snooty elites or masters of the universe — it’s Everyman’s paper. That means the word is starting to get out for real. Once the general population starts hearing about overcriminalization, and more importantly realizing that it can affect them personally — it’s only a matter of time before they start calling their congressmen to do something about it.

The time seems more ripe than ever. The past few years have seen a rapidly growing public awareness of police abuses. Something happened to the police while we weren’t paying attention, and now we’re all starting to see a nation filled with highly militarized police forces, police who see the rest of us as their adversaries rather than their masters, police eager to swipe our assets and make collars for dollars… and a realization that this excessive power is being used against “good guys” just as much as those bad guys nobody cares about. Add some basic familiarity with overcriminalization in this country, and you’re going to get a lot of people worried about militarized SWAT teams taking them down for crimes they didn’t even know they’d committed. (In other words, what’s already been happening for years.)

Awareness is necessary before anything can change, of course. So more articles like this (and podcasts and blog posts and hashtags and…) would be a good thing. Spread the word. And then maybe we’ll be able to make some headway. Maybe over a generation or two we might see some moderation of our criminal laws. Or who knows, maybe even take our foot off the accelerator of police powers a smidge? (It’s happened before, after all.) Maybe these could start to be realistic goals to shoot for!

Those were the initial musings I had when I first saw Reynolds’ piece today. But here endeth the serious part of this post, because my thoughts that immediately followed were just, well… silly.

I started to daydream. I imagined such a public outcry against too much police power, too many crimes on the books, and other abuses of the criminal justice system, that critical mass was reached. The tide turned. Progressive politicians who previously clamored to outlaw everything they didn’t like, now fought to shout loudest against the use of criminal law to punish human beings for mere civil and regulatory ends. Reactionary politicians who had once competed to look “tough on crime” by ratcheting up police powers and punishments, now vied with one another to deflate the excessive might of the State and protect individuals from unlimited government.

Far-fetched, I know. But it got worse.

A president was elected on a platform of total reform. Congress was tasked with completely overhauling the federal criminal code — throwing it all out and starting from scratch, eliminating everything that was duplicative, poorly thought out, vague, and stupid. Eliminating every regulatory crime created by the unelected bureaucrats, and requiring that only elected representatives could criminalize anything. Requiring a mens rea element for every offense. Standardizing the terminology and drafting of criminal statutes. Withholding federal funding from states and municipalities that failed to adopt policing reform grounded on the principle that police are civilians, and all the other civilians are on their same team, and most importantly requiring that there be zero financial incentive whatsoever — either to the officer or to the police department — to engage in any detention or seizure. And so forth and so on.

And the people rejoiced. Things got better.

Silly, right? Well, at least a guy can daydream. Now back to work.

[H/T Walter Olson]

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1 Comments

  1. John Neff, April 18, 2015:

    There are more than 51 bloated criminal and regulatory codes and I think that there are a substantial number of statutes where there were no changes or disposed cases in a ten year time span.

    Any statute like that should be repealed in my opinion. What would be better is a rule that no new statute can be enacted until an old one has been repealed.

    As you noted it is just a dream.

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