Judge Neil Gorsuch on Overcriminalization

On Friday night, the Honorable Neil Gorsuch of the Tenth Circuit Court of Appeals delivered the Barbara K. Olson Memorial Lecture at the Federalist Society’s National Lawyers Convention in Washington, DC. Judge Gorsuch assumed the federal bench in 2006, and his name is frequently mentioned as a potential Supreme Court nominee in a Republican presidential administration. His remarks on Friday were wide-ranging, but a significant portion focused on overcriminalization. That section of Judge Gorsuch’s talk is transcribed below the video.

“What about our criminal justice system, you might ask. It surely bears its share of ironies too. Consider this one. Without question, the discipline of writing the law down—of codifying it—advances the law’s interest in fair notice. But today we have about 5,000 federal criminal statutes on the books, most of them added in the last few decades, and the spigot keeps pouring, with literally hundreds of new statutory crimes inked every single year.

“Neither does that begin to count the thousands of additional regulatory crimes buried in the federal register. There are so many crimes cowled in the numbing fine print of those pages that scholars have given up counting and are now debating their number.

“When he led the Senate Judiciary Committee, Joe Biden worried that we have assumed a tendency to federalize, ‘Everything that walks, talks, and moves.’ Maybe we should say ‘hoots’ too, because it’s now a federal crime to misuse the likeness of Woodsy the Owl. (As were his immortal words: ‘Give a hoot, don’t pollute!’) Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag? Yes, they’re probably federal criminals too.

Whether because of public choice problems or otherwise there appears to be a ratchet, relentlessly clicking away, always in the direction of more, never fewer, federal criminal laws. Some reply that the growing number of federal crimes isn’t out of proportion to our population and its growth. Others suggest that the proliferation of federal criminal laws can be mitigated by allowing the mistake of law defense to be more widely asserted.

But isn’t there a troubled irony lurking here in any event? Without written laws, we lack fair notice of the rules we as citizens have to obey. But with too many written laws, don’t we invite a new kind of fair notice problem? And what happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?

The sort of excesses of executive authority invited by too few written laws led to the rebellion against King John and the sealing of the Magna Carta, one of the great advances in the rule of law. But history bears warning that too much—and too much inaccessible—law can lead to executive excess as well. Caligula sought to protect his authority by publishing the law in a hand so small and posted so high that no one could really be sure what was and wasn’t forbidden. No doubt all the better to keep us on our toes. (Sorry!)

In Federalist 62, more seriously, Madison warned that when laws become just a paper blizzard citizens are left unable to know ‘what the law is’ and to conform their conduct to it. It’s an irony of the law that either too much or too little can impair liberty. Our aim here has to be for a golden mean, and it may be worth asking today, if we’ve strayed too far from it.”

Vikrant Reddy: Overcriminalization, Overincarceration: A Conservative Response

Vikrant discusses reasons prominent conservative political leaders are shunning the “lock ‘em up and throw away the key” approach to crime and embracing a view that the nation has created too many crimes and too many prisoners.

Click here to listen to the entire podcast.

National Review Online: “Conservative Governors Take On the Mugshot Racket”

In this National Review Online piece, Vikrant Reddy takes on the issue of ‘mugshot extortion,’ saying “This presents a significant burden to exoffenders trying to obtain gainful employment and start anew. It presents an unconscionable burden to individuals who were never convicted in the first place.”

Click here to read the full article.

Vikrant Reddy on Denial of Cert in ‘Saint Joseph Abbey v. Castille’

In this National Review Online article, ROC policy analyst Vikrant Reddy discusses the ruling of Saint Joseph Abbey v. Castille, a case about the unlicensed sale of a funeral casket in Louisiana, and explains why it is “a significant victory against overcriminalization and unnecessary licensing.”

Click here to read the full article.

Vikrant Reddy: “Three myths about conservatives and criminal justice”

Vikrant Reddy details 3 myths about conservatives and criminal justice – and proves why they aren’t true.

Read the whole article here.

Podcast with Nebraska Senator Brad Ashford

In this Platte Institute podcast, Senator Brad Ashford of Nebraska speaks about LB 561, a bill that institutes major reforms in the Nebraska juvenile justice system. Under the new legislation, juvenile offenders, their families, and the courts work together to develop plans that better meet the rehabilitation needs of the offender. Of particular note, the bill places more low-level offenders in community-based supervision, rather than in costly correctional facilities that produce meager results.

Engulfed by Environmental Crimes

The Texas Public Policy Foundation recently released a report on overcriminalization which I co-authored with my Right On Crime colleague, Marc Levin. The report, titled Engulfed by Environmental Crimes: Overcriminalizaton on the Gulf Coast, has received some attention across the internet after being the subject of features on FoxNews.com and The Washington Examiner.

In the report, we argue:

“’Ground zero’ for state-level overcriminalization may well be the United States Gulf Coast.  Five U.S. states border the Gulf of Mexico—Texas, Louisiana, Mississippi, Alabama, and Florida—and between them, they have passed nearly 1,000 laws criminalizing activity along the coast. Criminal sanctions are of course appropriately applied to an individual who intentionally contaminates another person’s property. Too often, however, the activity that is governed by these myriad laws is non-blameworthy, ordinary business activity.”

We offer five recommendations to address the problem. First and foremost, we advise that states review their environmental regulations to determine whether criminal sanctions—in particular, prison—are appropriate. As former Texas state representative Jerry Madden says, ‘prisons are people we’re scared of, not people we’re mad at.’

Second, we advise states to strengthen the mens rea elements in their environmental criminal statutes. In environmental criminal prosecutions, offenders frequently lack the state of mind that would be necessary to convict for a traditional crime.

Third, we urge states to codify the rule of lenity and ensure that it is applied in environmental criminal cases. The rule of lenity is the canon of construction advising that vague criminal statutes be construed against the government and in favor of the defendant. It places a burden upon legislators to draft statutes as precisely as possible.

Fourth, we advise eliminating provisions that delegate to agencies the power to create new criminal offenses through rulemaking.

Finally, we encourage the adoption of safe harbor provisions. These provisions protect offenders from penalties if no harm has been done and the offender promptly acts to come into compliance.

The report is not limited to an abstract public policy discussion. In an appendix, the report documents several notorious incidents of overcriminalization throughout the Gulf states.

Striking Visualizations of the National Crime Decline

Crime rates have been declining throughout the United States for years. Scholars agree that only a small portion of the decline can be attributed to the increase in incarceration, but they debate endlessly about what caused the rest of the drop. One possibility is improvements in policing. The removal of lead from many commonly used consumer products has also been suggested as a factor. Yet another possibility is sensible community corrections strategies targeted at reducing recidivism. Broad changes in American culture, although they are difficult to quantify, are also a possibility. (As James Q. Wilson wrote in 2011, “[t]he cultural argument may strike some as vague, but writers have relied on it in the past to explain both the Great Depression’s fall in crime and the explosion of crime during the sixties. In the first period, on this view, people took self-control seriously; in the second, self-expression—at society’s cost—became more prevalent. It is a plausible case.”)

Whatever the reason may be, crime continues to drop. Many predicted that current economic troubles — particularly the high unemployment rates of recent years — would lead to a national rise in crime, but crime rates have nevertheless continued to fall. These infographics provide striking visualizations of the decline.

Property Crime Rates

Violent Crime Rates

Aggravated Assault Rates

Burglary Rates

Automobile Theft Rates

Larceny Rates

Murder Rates

Forcible Rape Rates

Robbery Rates

Pennsylvania Will Close Two Prisons

Last year, Pennsylvania passed SB 100 and HB 135, two major criminal justice reform bills. Now, following the largest one-year decline in inmate population since 1971, the Department of Corrections has announced that it will close two prisons, SCI Cresson in Cambria County and SCI Greensburg in Westmoreland County. Both facilities are among among Pennsylvania’s oldest and least secure prisons. (SCI Cresson was actually built to serve as as a tuberculosis sanitarium in 1913.) It is estimated that closing the two prisons will save Pennsylvania taxpayers about $23 million next year.

How Conservatives Think About Mass Incarceration

This weekend, on Bloggingheads, economist Glenn Loury and political scientist Steven Teles had a conversation about Right On Crime and how conservatives think about mass incarceration:

Professor Teles, who who co-authored this Washington Monthly article on the topic with David Dagan, says that conservatives are not exactly moderating their position on mass incarceration. Instead, they have independently (he uses the word “indigenously”) come to believe that mass incarceration violates conservative first principles. He mentions, for example, the point conservatives often make about the inevitable tendency of government to expand, and he says that conservatives are increasingly thinking about prisons with this point in mind. He also mentions that the arguments for prison reform are not being made by moderates, but by ‘dyed in the wool’ conservatives like Ed Meese, Bill Bennett, and Grover Norquist — all of whom are signatories to the Right On Crime Statement of Principles.

Similar arguments were made this week by the Texas-based criminal justice blog Grits for Breakfast after the Texas Association of Business (TAB), a pro-business trade group in Austin, announced that it was adding criminal justice reform to its list of 2013 legislative priorities:

“Grits would dispute [the] contention, though, that TAB has merely copied liberals, a meme which misunderstands what’s going on here….What’s new here is a growing willingness to apply small-government conservative values to criminal justice, which in the past has sometimes seemed exempt from such critiques. This new trend has perhaps been furthered by the rising use of criminal law to replace traditional tort liability and government regulation. But as a representative of some of the state’s largest employers, TAB also cares about Texas having an educated and productive workforce, goals that are sometimes hindered by overcriminalization and a byzantine array of occupational licensing restrictions, which was a central issue the group focused on at their announcement. TAB’s entry into the criminal justice realm represents both an example of enlightened self interest and the ascendance of conservative ideology to the furthest reaches of state government activity.”