Texas needs to use its available parole resources and continue on the model of getting Right on Crime by decreasing the population [and reducing] this fiscal burden. With extreme underfunding, the prison system is a constitutional liability to taxpayers with Federal court intervention a major risk.
Right on Crime in the Washington Post: E.J. Dionne champions ROC’s advocacy for “community-based programs rather than excessive mandatory minimum sentencing policies and prison expansion.”
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.”
Suppose you own two automobiles; a brand-new, 8-seat SUV and an old, broken-down coupe. The SUV is more than capable of safely and conveniently transporting your family to their individual destinations, while every trip with the coupe is a roll of the dice. Would you pay to keep it running in its current state? Moreover, would you borrow money from your neighbor to do so?
The current notion of keeping open an unneeded, and ineffective state youth lockup that was budgeted for closure is no less senseless.
ROC policy analyst Vikrant Reddy: “The pendulum has swung too far from the ‘lock’em-up-and-throw-away-the-keys’ days; it’s time to pull it back.”
John S. Baker Jr., William J. Haun of the Federalist Society discuss the Task Force on Overcriminalization’s re-consideration of “the wisdom of enacting so many federal criminal laws.”
“An estimated 4,450 federal crimes and 300,000 federal regulations attach criminal sanctions and penalties to everyday activities average Americans and business owners have little way of knowing are crimes.
As a result, well-meaning, law-abiding American citizens and business owners spend innumerable hours and dollars fending off criminal prosecution for actions they never suspected were illegal, and states spend millions incarcerating unthreatening individuals.”
While New York isn’t exactly a beacon of liberty, it has been pursuing sensible criminal justice reform over the past few years. Reforms in 2009, for instance, softened mandatory sentences for non-violent drug offenders and promoted drug courts.
In a time of state-level penny pinching, the Empire State is moving ahead with the closure of several prison facilities. Governor Andrew Cuomo, the architect in a spree of prison closings, is now moving to shut the lights off at Chateaugay Correctional Facility in upstate New York. The governor’s promise to work, “very hard with communities that are going to face closings to come up with economic development” is being met with harsh criticism by the state correction union. The group accuses Cuomo of “balancing the budget on their backs,” and warns of drastic public safety ramifications.
What, though, does the evidence say on prison expansion and consolidation?
Research conducted by scholars Western, Wildeman, Manza, Braman, and others suggest that programs of mass incarceration carry large unintended consequences. Dr. Todd Clear, Dean of the School of Criminal Justice at Rutgers, finds that large-scale imprisonment results in, “broken families, weakened the social-control capacity of parents, eroded economic strength.”
Professor Joshua Page of the University of Minnesota takes the analysis a step further and links prison expansion to the power of state corrections unions. What we see in states such as New York and California is the growth of “financial resources, political acumen, and connections” amongst organizations such as CCPOA, and accompanying opposition to prison reform.
Though these embedded interest groups are fighting closures that will undo some of the damage associated with over-incarceration, the officers do have a point. Hundreds, if not thousands of state employees will have to find work elsewhere as a result of Cuomo’s closing crusade.
In the short term, assistance programs will be needed to transition areas affected by closings. In the long-term, however, funds will be saved by utilizing smart alternatives to incarceration like the HOPE system. It’s up to New York, already on the road to a better system, to examine cost-effective alternatives to mass imprisonment.
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.