Protectionism and Overcriminalization in Michigan

In 2008, Michigan passed a law requiring all high-volume beverage manufacturers to imprint a unique logo on any cans and bottles sold in the state because Michigan takes part in the bottle deposit refund system. Under this system, consumers pay an extra fee at the point of sale, but can get the amount back if they return the bottle or can.

Manufacturers are required to place the logo on all bottles and cans sold in-state, and they are prohibited from selling bottles and cans with the logo anywhere else.

The penalty for noncompliance is up to $2,000 per bottle or can sold and a maximum of six months in prison.

Not only does the Michigan law inhibit open commerce, but it is a troubling criminalization of behavior that would not traditionally be considered blameworthy. There is no direct victim if logo-free bottles and cans are sold in Michigan, or if imprinted bottles are sold in, say, Indiana.

This policy requires distributors to set up entirely distinct production, warehousing, and distribution systems for the state of Michigan—and risk hefty criminal penalties for the failure to comply.

The Washington Legal Foundation recently filed an amicus brief with the Sixth Circuit supporting a national beverage association’s lawsuit over the restriction, based on a theory of interstate trade discrimination, but the overcriminalization aspect of this case is equally distressing.


13-Year-Old Allegedly Arrested for Burping

A New Mexico public school has allegedly prescribed an unusually heavy penalty for some unusually minor misbehavior.

The alleged criminal behavior was burping in school. The penalty was an arrest and referral to a juvenile detention center for counseling.

Under Article 20, Section 13 of New Mexico’s Criminal Code, it is a petty misdemeanor to willfully interfere with public schools, and one 13-year-old Albuquerque student claims he was arrested for this misdemeanor after burping in class.

The boy has since filed suit against the teacher, school resource officer, and principal.

While burping might not be polite social behavior, most certainly would not consider it worthy of an arrest. The alleged facts of this case, if true, would indicate that overcriminalization is slowly creeping into our schools.

Interference with public education is a valid concern for the New Mexico legislature, but applying this statute to burping during class would be a misuse of public resources without any significant public benefit.


Florida Focuses on Juvenile Education Behind Bars

A Senate committee in Florida is undertaking comprehensive juvenile justice reform, and one aspect of that reform is education.

Senator Stephen Wise, a Republican from Jacksonville, has introduced legislation (Senate Bill 834) to ensure that juveniles receive an education while committed. For youth who have already received a high school diploma or its equivalent, the bill would require the offender to receive an industry-specific certification.

The legislation requires some sort of education (which is negatively correlated with recidivism) for all juveniles, virtual learning (if necessary), and performance measures and cost statements.

These steps for the juvenile justice system in Florida will reemphasize education for youthful offenders and could provide the tools to break the cycle of criminality.


Overcriminalization Gets a Hearing On Capitol Hill

Last week, overcriminalization experts testified before the Subcommittee on Crime, Terrorism, and Homeland Security of the U.S. House Judiciary Committee.

The subject of the hearing was H.R. 1823, the “Criminal Code Modernization and Simplification Act of 2011.” This bill, sponsored by Congressman Jim Sensenbrenner, a Republican from Wisconsin, has two core elements. First, it reduces the size of the criminal code, cutting out unused and overbroad offenses which infringe on those more properly policed by the states. Second, it ensures sufficiently well-defined culpability (mens rea) is required to be proven as a part of a federal case.

Sensenbrenner has proposed this bill for four congressional sessions in a row now, and the bill finally received a hearing on December 13th.

At that hearing, Right on Crime signatory Ed Meese testified, along Dick Thornburgh, Tim Lynch of the CATO Institute, and Stephen Saltzburg. According to the Wall Street Journal, a bipartisan contingent of lawmakers criticized the overgrown federal criminal code.


Crime, Correctional Supervision Down Across the United States

Two reports from the federal government highlight recent decreases in both crime rates and rates of correctional supervision across the United States.

In the first, the Bureau of Justice Statistics reported that the number of adults incarcerated or on probation or parole decreased by 1.3 percent in 2010. Of the 7.1 million people under correctional supervision, about three-tenths are incarcerated, and seven-tenths are under community supervision. Federal prison populations actually grew by 0.8 percent in 2010, so the decrease is largely attributed to shrinking state correctional populations. Even federal prison growth, however, is at its lowest rate since 1980.

The second major report, from the Federal Bureau of Investigation, concludes that in the first half of 2011, violent crime has dropped by 6.4 percent, while property crime has fallen by 3.7 percent, continuing a recent downward trend.

The simultaneous drop in correctional supervision rates and crime rates undermines the common perception that more incarceration necessarily leads to less crime.  The figures also belie the argument that a poor economy necessarily leads to more crime. Both the BJS report and the FBI report provide encouraging news for reform advocates.