John Stossel on Overcriminalization

John Stossel’s recent article, “America, The Law-Crazed,” brings into sharp focus America’s troubling tendency toward incarceration and criminalization. This has been driven by an expansion in the scope and scale of criminalization, with an incomprehensibly large number of criminal laws and a propensity towards more severe punishments.

Stossel’s article covers a variety of topics, from the endless occupational licensing and regulatory burdens on our nation’s most productive members to the often misguided approach to substance abuse which prioritizes incarceration ahead of treatment. The ultimate value of these policies must turn on whom, if anyone, benefits. Stossel posits that it is not the American people, but rather politicians at the expense of the people.

From the article, published originally at Human Events:

I want my government to arrest real criminals — ones who violate our rights — and to lock them up so we’ll be protected. But our politicians go way beyond that. Governments at all levels have long been in the business of forbidding conduct that violates no one’s rights and piling on complex laws to govern conduct that might harm someone. And they keep passing more.

They have created a byzantine maze of criminal law that is so incomprehensible that even legal specialists don’t agree on what the rules specify. Then ambitious prosecutors ruin lives enforcing those laws. The prosecutors and lawmakers say this is for our own good.

No, it’s not.

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New Jersey’s New Approach to Substance Abuse

Already a vocal supporter of drug courts as a potential alternative to incarceration, Governor Chris Christie of New Jersey recently signed into law a bill that will mandate treatment and avoid costly incarceration for nonviolent drug offenders. Rich Lowry’s recent column identifies this as a potential paradigm shift in national substance abuse policies, given Christie’s prominence as one of the country’s toughest conservatives. These days, as Lowry sees it, the national conversation is much more focused on treatment opportunities and ensuring that drug offenders find a way to kick their habit.

Choosing to support treatment, rather than incarceration, does not mean that one is unconcerned with substance abuse. When a careful inspection of the existing policy reveals high costs and low benefits, it is time to reevaluate the policy. Governor Christie and New Jersey’s legislative bodies deserve praise for attempting to find a more effective, less costly response to substance abuse.

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King v. United States and the Overfederalization of Criminal Law

Near the end of the recent Supreme Court term, as the justices announced several headline-grabbing opinions (including, of course, NFIB v. Sebelius), one decision unfortunately slipped below the public radar – a denial of certiorari in King v. United States, a case of great significance for those concerned about the needless overfederalization of criminal law.

King, an Idaho rancher, injected uncontaminated water into an underground well on his own land.  Injecting clean water into a well is illegal because it has the potential to disrupt elements below the surface and possibly contaminate other aquifers. King then lied about his actions to state investigators in Idaho.

At the risk of sounding jejune, King shouldn’t have lied. His lie, however, should have remained a state offense, punishable under state law.

The Ninth Circuit Court of Appeals didn’t see it that way. The court panel (composed of two Clinton appointees and one Johnson appointee) wrote that “King lied to Klimes, one of the [Idaho] investigators, in order to defeat the investigation. A willful injection of fluid into a deep well without a permit from the State of Idaho is a federal crime under the Safe Drinking Water Act. Therefore, King made a false statement in a ‘matter within the jurisdiction’ of the United States.” The Court’s argument, in other words, was the essence of the overfederalization: ‘You violated a state law and you lied about it to a state official. That’s a federal offense.’

The National Association of Criminal Defense Lawyers, the Cato Institute, and the Texas Public Policy Foundation filed this amicus brief urging the court (unsuccessfully) to grant cert to clarify that an individual should not face federal criminal liability under 18 U.S.C. § 1001 (which criminalizes false statements) for a false statement that is “made to a person unconnected to the federal government at a time when no federal investigation exists merely because the statement concerns an issue over which the federal government may exercise discretionary regulatory authority.”

The brief noted that in every Section 1001 case before the year 1984, prosecution always involved a false statement made directly to a federal official, but since then the law has been frequently extended to apply to cases like King’s in which the false statement was made to a state or local official. (It’s hard to avoid the wry observation that 1984 is the year when the federal government started to overreach in this area…)

Unfortunately, due to the Supreme Court’s denial of cert, the next term will not be the one that tackles the increasing federal abuse of 18 U.S.C. § 1001. Concerned stakeholders will need to wait—and hope—for another opportunity.

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Paul Cassell on the Victims’ Rights Amendment

Slate.com just completed a series featuring short articles by prominent legal thinkers titled “How Can We Fix the Constitution?” Among the submissions was a piece by former federal judge Paul Cassell, recommending a Victims’ Rights Amendment. Cassell, a George W. Bush judicial appointee who served as a federal district judge in Utah for over five years, argues that an increase in the rights of victims does not necessarily result in a decrease in the rights of the accused. For example, he notes that “even in several states identified as giving ‘strong protection’ to victims’ rights, fewer than 60 percent of victims were notified when defendants were sentenced and fewer than 40 percent were notified of the pretrial release of the defendant.” As Cassell explains, it’s hard to see how the rights of the accused are diminished merely by granting victims greater rights to notice of the sentencing proceedings.

The case for an amendment, however, isn’t a slam dunk. Cassell acknowledges the concerns of “opponents [who] have argued that the rights of crime victims do not belong to be in the Constitution because they do not concern the country’s political architecture.”

Nevertheless, Cassell is a strong advocate of the amendment. His entire piece, which includes the language for a Victims’ Rights Amendment proposed in the current Congress can be read here. Cassell has also drafted a Utah Law Review article defending the amendment which can be read here.

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Georgia Special Council Turns its Attention to the Kids

One challenge in almost every policy discussion is how to make the numbers mean something.  So, let’s hope these numbers mean something.  The annual cost to fully incarcerate someone in Georgia’s juvenile detention system is $98,000 per bed, more than five times greater than adult prison system per person costs.  On the other hand, the state share is about $4,300 per pupil in the K-12 public school system.  One is an investment in the future. The other is simply shocking.

“Where is that money going?  Where is that $98,000?”  That question – asked rhetorically – was among several posed this week when the newly reconstituted Special Council on Criminal Justice Reform held its first meeting to consider a vast rewrite of the state juvenile code.  The Council retained all 13 members whose work helped to craft ideas for this year’s adult criminal justice system reforms, but it added eight new members, several with juvenile code expertise.

The Council is also expected to consider some unfinished business from the 2012 adult system reforms; in particular, more work on earned compliance credits, mandatory minimum safety valve sentencing ideas, and possible decriminalization of some traffic offenses.  But make no mistake about it; the main course on this year’s menu will be juvenile justice reform.

“States across the country including Georgia are facing very high per child costs in the juvenile system,” Pew Center on the States public safety analyst Jason Newman told the Council.  Part of the reason for higher expense is the juvenile system has costs that are not found in the adult system.  For example, mandatory education and especially special education which is costly.

Newman also told the Council, “Most states are not getting very good outcomes.”  That includes Georgia; 60 percent of juveniles who serve time in secure facilities commit another crime within three years.  They return to the juvenile system, or after age 18 show up in the adult system.

This year the General Assembly nearly enacted a package of significant juvenile reforms.  A bill that unanimously passed the House (HB 641) was sidelined because of questions about state expense and how local communities would afford services they would be asked to provide.  The bill has existed in various forms for about five years, with lots of stakeholder contributions.

The Special Council faces a December 31 deadline to submit its recommendations to Governor Nathan Deal and the General Assembly.  Legislation is expected in the 2013 Legislature.  The Council will again receive technical assistance from the Pew Center and this new venture is joined by the Annie E. Casey Foundation which has decades of juvenile code expertise.

There is a great deal more to this conversation than questions about incarceration or expansion of community-based alternatives, similar to the path being implemented in the adult system. For example, the juvenile code as envisioned in HB 641 would address juveniles who are unruly, but their actions would not be crimes as adults.  Some Council members indicated they want to consider how to decide whether 17-year-old offenders should be treated as juveniles or adults.

The Georgia Department of Juvenile Justice will spend $300 million this fiscal year.  That will pay for seven Youth Development Campus facilities where juveniles can be held as long as two years; this is the juvenile equivalent of the state adult prison system.  DJJ operates 20 Regional Youth Detention Centers where juveniles are held while awaiting adjudication for an offense.   The department is also responsible for some 14,000 youths in community-based settings.

When you look at all the services provided – and all the locations where service is provided – the state DJJ interacts with about 41,000 juvenile offenders per year and it maintains a daily headcount of almost 16,000 offenders in its secure detention or community-based programs.

Forty-five percent of those will commit a new crime within three years, and as stated above, that number is 60 percent for those who are sentenced to a secure facility.  “That rate has increased slightly over the last eight to nine years,” Pew’s Newman told the Special Council.  “So despite significant costs the state is actually seeing recidivism rates that are on the rise.”

“With all due respect, those numbers are lower than I thought,” said Oconee County Sheriff Scott Berry, who is newly appointed to the Council.  “It depends on what you are asking,” Newman said.  “If you’re talking about re-arrested those numbers are higher. These are just the ones that are re-adjudicated,” meaning, they are back inside DJJ facilities or programs.

The Special Council did not announce a timetable for next meetings.  It will divide into work groups.  State Court of Appeals Judge Michael Boggs and Governor’s Office deputy executive counsel David Werner are co-chairs.  “Nothing is off the table,” Boggs told the panel.  “We want to make sure that we are inclusive.”

A longer version of this post also appears on the Georgia Public Policy Foundation’s Forum Blog.

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