The Tripod

You are almost certainly a felon. Not a convicted felon, of course. But chances are you have already violated dozens if not hundreds of Federal criminal laws, which have now created over 9,000 different crimes. Civil-liberties lawyer Harvey Silverglate has claimed that the average American commits three felonies a day, the vast majority of which, of course, go unprosecuted. But even if you have never been prosecuted for a Federal crime, that does not mean that you never will be.

Just look at the case of George Norris, a retiree who ran a small business importing and selling flowers out of his home. In 2004 he was prosecuted under the Lacey Act, which enforces international fish and wildlife treaties with the force of Federal law, because he had not properly filled out all of the paperwork needed to import orchids. He served two years in Federal prison - the nature of the crime could not be taken into account by the judge because of minimum sentencing rules. Krister Evertson, who experimented with fuel cells, faced prosecution because he forgot to put a federally mandated safety sticker on a UPS package containing sodium which was otherwise packaged and sold by him within the law. A jury acquitted him. Federal prosecutors, not about to allow someone out of their grasp, then charged him using an overly broad statute regarding the abandonment of hazardous waste. While he had been in jail during the first trial, he had left his fuel cell materials in storage - the government was able to use the law as it was written to force a conviction and sentence for two years. These two cases came to light through testimony to a hearing of the House judiciary committee regarding overcriminalization. There are dozens more publicized cases of overreaching prosecution related to obscure Federal laws.

There are currently, according to the Department of Justice, 2,310,984 prisoners in federal, state, and local prisons and jails in 2008, of whom only a little more than 1.5 million have actually been convicted of a crime. Such a wide gap obviously shows a system in which the number of prosecutions far outstrips the ability of the justice system to process them. Many of these people, like Mr. Norris and Mr. Evertson, are wrongfully prosecuted, but in prison awaiting trial. Such a high total number overall indicates a sickening predilection of this government for imprisoning its own citizenry.

There are two forces at work in the increasing overcriminalization of American law. One is the Congress, which has now abandoned any pretense at limiting the role of the Federal government in the lives of everyday citizens. Instead of leaving such matters to state or local authorities, Congress passes hundreds of laws meant to regulate the behavior of citizens. These laws are passed with good intentions, but Congress seems completely blind to the "law of unintended consequences." For example, one current anti-cyberbullying bill would make it a crime to use the Internet to "coerce, intimidate, harass, or cause substantial emotional distress to a person." While such a thing may seem patently ridiculous - such things constitute part of the very fabric of the internet - many similar measures are already on the books. Almost nobody is ever prosecuted for such crimes, but there is nothing from stopping an overzealous prosecutor from using them against anyone. And this is exactly what they do. The sad fact is that prosecutors now often care far more about their conviction rate and politics than they do about fairness and justice. The increasing tendency of prosecutors to push the spirit of the law is the second force contributing to overcriminalization. The result is that the good intentions of Congress are being warped, so that everyday citizens can now be prosecuted for crimes they had no ill intent to commit.

Of course not all overcriminalization is the result of vague legislation and prosecution of unintentional crimes. The U.S. government has also deliberately made itself the enemy of the more than 100 million Americans who have tried a substance that it has deemed illegal, the substance in question usually being marijuana. According to the FBI, about 1.8 million Americans are arrested every year on drug charges; about half that number are only charged relating to marijuana. The War on Drugs sends thousands of ordinary Americans, non-violent offenders, to prison out of the belief that the government should regulate what people are able to put in their own bodies. Rather than simply regulating dangerous substances and supporting the rehabilitation of those arrested for possession, the overzealous minimum sentencing guidelines mean that many people are transformed into criminals through the process of being removed from society to be surrounded by hardened criminals for several years.

Both the Democrat and Republican parties have shown a disturbing willingness to play politics with criminal law, to allow innocent Americans to go to jail so that Congress may claim a public relations victory or curry favor with interest groups (such as the aforementioned Lacey Act, an ill-conceived gift to environmentalists). Increasingly Congress resorts to enforcing regulation, such as the Health Insurance Portability and Accountability Act (HIPAA), by causing non-compliance with the regulation to be punished by harsh minimum prison terms. Of course all of this is part of the larger phenomenon of the Nanny State, in which legislators increasingly see the role of government as one of social engineering, organizing how Americans go through their everyday lives. This attitude is dangerous to the fabric of our criminal justice system, which should exist to protect individual rights, not trample them. John Stuart Mill wrote, "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant." America is in danger of losing sight of the purpose of criminal law and, in the process, is making criminals of millions of Americans who have done little to deserve that status.

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