Marc Levin, Policy Director of Right on Crime, testified before the U.S. House of Representatives’ Judiciary Committee on the subject of over-criminalization.
The National Academies’ exhaustive report, “The Growth of Incarceration in the United States: Exploring Causes and Consequences,” released last month, covers nearly the entire body of scholarship on the causes of the incarceration boom.
The causes, as identified by the authors, derive from a charged political arena favoring longer sentences, the trend towards harsher methods of punishment, and the rapid development of increasingly punitive drug laws.
Certainly, the last four decades of criminal justice policy reflect this.
Shannon Edmonds, Director of Governmental Relations at TDCAA, Paul Larkin, Senior Legal Research Fellow at The Heritage Foundation, and Representatives Bryan Hughes and Jeff Leach of the Texas House of Representatives discuss the burden of overcriminalization during the panel “Getting Rid of Unnecessary Laws” at TPPF’s Policy Orientation 2014.
With an avalanche of state-based initiatives to reform the criminal justice system, it is easy to ignore happenings at the federal level. Unfortunately, the felonization of America continues virtually unnoticed. Federal statutes with vast reach put millions of Americans at risk of being fined or imprisoned, with much damage already done.
Cambridge Attorney Harvey Silverglate has thoroughly documented this federal over-criminalization, and his conclusions are frightening. Silverglate estimates that the average American commits three felonies a day!
But what activities of a straight-laced professional can qualify as heinous crimes? Consider the Lacey Act: importing activities that run afoul of the originating country’s laws are punishable by prison time. In an oft-repeated example, seafood merchant Abner Schoenwetter was sent to the slammer for five years for incorrectly importing lobsters from Honduras. The scariest applications of the law, however, may be forthcoming. In 2008, environmentalist groups secured passage of an amendment to the Lacey Act that prohibited the importation of illegally-gathered wood. Given the importance of timber-based imports in our economy and the obscurity of federal law, more brave entrepreneurs will inevitably have to “answer” for their “crimes.”
Silverglate’s work touches on many other aspects of the law, including imagined conspiracies to defraud a company through calling in sick. Few cases, though, match the overreach of Nixon’s Racketeer Influenced and Corrupt Organizations Act of 1970. The law has succeeded in netting Mafia members, but the broad text of the statute invites abuse. An individual can land in hot water by merely using funds derived from a repeated racketeering activity; no racketeering in itself is required. Combined with broad forfeiture laws, this means that assets acquired with the help of a family member or friend can be taken away . The law acts as a “nuclear bomb” on the accused, as prosecutors can threaten the harshest sentences imaginable and action against friends and family unless the defendant agrees to certain terms.
At its worst, the law fiercely punishes fleeting associations with bad organizations; scholars Flood and McGough document these “creative uses of the statute” in Columbia Law Review. Rather than curtailing this dubious law, prosecutors are seeking to expand the scope of the law to include websites and hospitals. Whether through the Lacey Act or RICO, federal law-makers and prosecutors have been determined to harshly criminalize activity without end. Only through re-clarifying the original purpose of crime legislation and resisting mission creep can we reform our ailing criminal justice system.
In response to Governor Perry’s remarks concerning the decriminalization of marijuana, this article by Texas Monthly credits Right On Crime’s reform policies with helping to reduce Texas’ incarceration rates.
“Texas’s recent reforms on drug policy are summarized at the Right on Crime initiative, which began here, at the Texas Public Policy Foundation, and has since spread to a number of other states.
Jailing people for nonviolent drug crimes is expensive, if nothing else, and historically Texas has had woefully high incarceration rates, which have required a disproportionate share of the state’s general spending. Texas still has the biggest prison population in the country, but during Perry’s time as governor, and partly as a result of these reforms, the state’s incarceration rate has dropped…”
“Restoring common sense to sentencing is the obvious first step in downsizing prisons.”
In his latest op-ed, Bill Keller of The New York Times, writes about the issue of mass incarceration in the U.S. and what our nation can do to reverse this trend.
The ROC statement of principles is also cited in the article as Mr. Keller discusses this bipartisan movement.
Louisiana leads the nation in incarceration. The state’s prison population doubled during the past couple of decades.
As discussed in The Advocate, Kevin Kane of the Pelican Institute, along with the Texas Public Policy Foundation, are working to reverse this trend. Click here to read the article.
“Led by Grover Norquist and Newt Gingrich, Right on Crime seeks to reduce the number of prisons and prisoners to fight crime, prioritize victims, and protect taxpayers.”
The Congressional Task Force on Overcriminalization held its fourth hearing in November. Composed of five Democrats and five Republicans, the Task Force, which awaits reauthorization after its November 30 expiration, was first created on May 7, 2013, by a unanimous vote of the House Committee on the Judiciary. The Task Force was charged to “conduct hearings and investigations and issue a report on overcriminalization in the federal code, as well as possible solutions.” In this podcast, we hear from Shana-Tara Regon, NACDL’s Director of White Collar Crime Policy, about this groundbreaking task force, the work it has done, and the critically important work that lies ahead.
In what is amongst the frontrunners for “Silliest Criminal Case of 2013”, a 50 year-old Georgian was charged with the theft of about 5 cents worth of electricity from DeKalb County.
The pernicious Kaveh Kamooneh, when not absconding with five entire pennies worth of electrical power from public sources, is the owner of an Atlanta area property rental and investment firm and formerly a university professor. On November 2nd, as the electron rustler was picking up his son from a morning tennis competition at Chamblee Middle School, he plugged his Nissan Leaf into an outdoor power outlet.
After being alerted to the crime-in-progress by a “concerned citizen,” an officer from the Chamblee Police Department approached the vehicle. Unable to find the culprit, the officer opened the unlocked car door to examine a piece of mail on the floor of the car thought to contain the owner’s address. When Kamooneh approached, the officer gave him what was undoubtedly the sternest of finger-waggings, threatening to arrest the man before eventually allowing him to leave.
However, eleven days later, Mr. Kamooneh was met at the door to his home by two uniformed patrol officers. The officers placed Kamooneh under arrest and in handcuffs before taking him to the county lockup. He was held at the DeKalb County Jail for about fifteen hours.
Sergeant Ernesto Ford of the Chamblee Police, the officer who sought the arrest warrant, defended the decision. His rationale: “A theft is a theft.” According to the Platonic law of identity, this is correct. This also implies that Mr. Kamooneh’s actions are indistinguishable from those of Bernie Madoff, D.B. Cooper, and Catwoman.
Misapplication of legal semantics aside, the argument can be made that Kamooneh did violate a law. However, this rote approach to law enforcement glosses over the violation of constitutional safeguards, wastefulness, hypocrisy, and the affront to the validity of government agents caused through this action.
Consider the procedural standards that the responding officer likely violated. Seeing an electronic vehicle plugged into an outlet does not substantiate probable cause. Certainly, he could posit that the driver was not given permission to top off, but absent school personnel to confirm this, this does not grant leave to violate an objectively reasonable expectation of privacy and search a closed automobile.
While the fruits of this obvious Fourth Amendment violation did not substantially contribute to the facts of the case, consider the transitive nature of the costs involved.
For the sake of argument, let’s assume that the three officers involved with this case are somewhat new to the force and make $36,000 per year as a base salary. Assuming two weeks of vacation being provided, this would translate each officer making $18 per hour, or 30 cents per minute, or a ½ cent per second.
If it took the responding officer more than 10 seconds to clear the scene – likely, given the narrative – the county lost more money in enforcement than was commensurate with the crime.
If the two arresting officers took more than 5 seconds to place handcuffs on Mr. Kamooneh, transport him to the county jail, and fill out all necessary booking paperwork – likely, given the immutable laws of physics – and the county lost even more money.
If the responding officer himself left his car idling for more than two minutes, he has injudiciously squandered more of the taxpayer’s money in fuel than Kamooneh is alleged to have stolen.
Yes, those are simple, glib examples. Each of these officers would be on duty regardless of whether or not Mr. Kamooneh plugged his car into a school, as would be the jailors, courtroom employees, and so on. Kamooneh is not likely the proverbial back-breaking straw that will plunge the DeKalb County Jail into an overcapacity crisis or fiscal ruin. At press time, it still exists.
More troubling are the intangible costs this incident has inflicted. At the most basic level, the time of three bonded police officers was wasted tilting at Mr. Kamooneh’s windmill, while invariably other felonies or misdemeanors were happening in the area. Even if none were, the jurisdiction of Chamblee was deprived of the effective deterrence and response presence of one or two officers during their involvement.
Perhaps the largest unseen cost of this ordeal is the erosion in the legitimacy of the police. Empowered with the coercive force of the state (and outnumbered by the citizenry nearly 390 to 1), officers in the United States rely upon the public’s trust that they will engage in actions that, at least indirectly, protect and serve the public. When enforcement actions are taken, the sum of the imposition on the subject should not be in excess of the harm they have caused or immediately will cause.
Let us also assume that Mr. Kamooneh makes $36,000 per year as well. Since he was arrested at 8 PM on November 11th and held for about 15 hours, it is safe to assume he missed at least four hours of the next work day. At the $18 hourly rate mentioned above, this incident of over-enforcement has directly cost this man $72 worth of productivity that would have been of marginal value to the greater economy, not to mention the long-term unseen cost associated with having a criminal record.
Law enforcement decisions should not solely derive from calculating the costs of enforcement versus anticipated gains in commensurate retribution or deterrence. It would take some rather stunning mental gymnastics to even rationalize the social cost of a crime, much less the value of the absence of crime.
However, it is important to think about why we have the police – a group of fellow civilians who derive tertiary legitimacy from elected officials. Ostensibly, we want for the police to protect us directly or indirectly, deter crime, and response when a crime occurs. To accomplish this, society abdicates its own natural right to use force when needed and entrusts the police to do so. Incidents in which this entrusted force is used incommensurately, arbitrarily, or capriciously, erode this trust, make their job more difficult and unsafe, and threaten public safety for all.