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.

The HOPE Court Model is Spreading

Right on Crime has previously discussed Fort Worth’s adoption of the HOPE Court model. HOPE is a Hawaii program centered on immediate—and tough—sanctions for probation violations, rather than far-off court dates and mere slaps on the wrist. Now, more probation departments are catching on, and the trend—and successes—are spreading further across the United States.

Seattle is piloting a new HOPE-based model after collaboration between the city council, the mayor, and the police chief produced an agreement to give the program a shot. The initial program has resulted in reduced drug use, incarceration, and criminal activity, according to city officials. So far, 35 offenders on community supervision are subject to frequent, unannounced drug tests, and they can receive short jail stays—that same day—for a violating conditions.

Moreover, a chief probation officer and a Republican state representative, Ralph Foley, are working to implement the HOPE model in select counties in Indiana too.

County in Texas Debuts Additional Diversion Program

Tarrant County, Texas (where Fort Worth is located) has developed a new program for young adults that is aimed at individuals charged with family violence involving non-intimate relatives. The program, the Youth Offender Diversion Alternative, or YODA, targets young adults 17-25 who are charged with such crimes, and it provides intensive counseling to show participants how to make better choices in stressful situations or arguments. If the offender completes the program, the charges are dismissed and erased from his or her record.

The program is currently funded through a private grant from the Amon G. Carter Foundation. Public-private partnerships like this are often well-positioned to experiment with creative policy approaches while also limiting costs to taxpayers.

At this point, the 20 graduates of YODA have not committed another offense, and a preliminary study shows decreased aggression and substance abuse problems among participants. The participants also exhibit improvements in mental health and stability. So far, the program provides a reason to be optimistic.

Faith-Based Mentoring for Juveniles in Texas

Howard Payne University, a 1,400 student-strong private university in Brownwood, Texas, is reaching out to female juvenile offenders in the nearby Ron Jackson State Juvenile Correctional Complex.

Through the school’s Baptist Student Ministry, students can pair up with juveniles to provide an hour of mentoring each week. Most students choose to provide faith-based mentoring.

The chaplain at Ron Jackson notes that the mentoring is “invaluable.” Research shows (two comprehensive lists appear here and here) that such faith-based mentoring can sometimes make a monumental difference in a youth’s life.

A Criminal Record for Preventing Flooding at a Military Retirement Home

Lawrence Lewis decided that elderly and ill veterans should not have sewage flooding their floors. As a result, he was sentenced to a year of federal probation, and he has a criminal record that he cannot avoid disclosing when applying for jobs.

The federal government accused Lewis of violating the Clean Water Act because when he attempted to divert sewage from flooding the military retirement home where he served as the chief engineer, he unknowingly diverted the sewage into a creek that carried water to the Potomac River. He thought—as did all of the other staffers at the retirement home—that the storm drain was connected to a city sewage-treatment system.

This innocent mistake proved costly. Under the Clean Water Act, the government can prove up its case by showing that the alleged defendant either acted knowingly or negligently. Negligent behavior is the failure to use reasonable care. Lewis, of course, thought he was using reasonable care by seeking to prevent the flooding of the nursing home—but the government does not take this mistake into consideration.

This heavy-handed use of criminal law is inappropriate. It is needlessly costly for taxpayers, who foot the bill for the prosecution, trial, and supervision of a defendant who is not guilty of a blameworthy act. Criminal penalties for unknowing mistakes such as Mr. Lewis’s only serve to grow government, and they do not protect citizens.

There are over 4,500 federal criminal laws on the books and more than 780,000 federal convictions in the last decade. Furthermore, “increasing numbers of federal, state, and local criminal offenses…dispense with a culpable mental state or require mere negligence instead of intent, knowledge, or recklessness,” according to Right on Crime’s Marc Levin. Levin advocates for the traditional requirement of a culpable mental state when obtaining criminal convictions. He also proposes the increased use of citations or injunctions for behavior that is not traditionally criminal.

State and federal criminal codes should be reviewed to ensure that appropriate culpable mental states are included as elements of criminal offenses, and Mr. Lewis should not have a criminal conviction hanging over his head for unknowingly diverting sewage to the wrong storm drain to save elderly veterans’ retirement homes.

Reverse Engineering Crime Control

Attorney Peter M. Thomson, via the Federalist Society, has a question for criminologists: “If recidivist offenders as an entire class were technologically ‘blocked’ from engaging in criminal behavior, would not crime rates plummet correspondingly?”

Thomson considers whether intensive electronic monitoring through a GPS devise might provide a far greater reduction of recidivism risks. This monitoring would include cross-referencing the offender’s location with local law enforcement information and other technologically-enhanced supervisory possibilities.

Thomson points out a few successful examples of GPS monitoring across several jurisdictions. He also notes the constitutional issues raised by electronic tracking, but he concludes that it could likely withstand such challenges.

Many courts already use electronic monitoring both pre- and post-adjudication (for an example, see this recent article about a successful program in Jefferson County, New York). Thomson suggests that the technology is likely to expand—both in scope and intensity.