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.”

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ROC in The New York Times: “A Bid to Keep Youths Out of Adult Prisons”

In this The New York Times story, ROC signatory and Colorado State Representative B.J. Nikkel credits Right on Crime for influencing her work on a bill to keep juvenile offenders from being automatically tried as an adult and to keep them from being placed in adult prisons.

Click here to read the full article.

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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.

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Prison Population Continues to Drop in Colorado

A little less than a year ago, Right on Crime mentioned that Colorado was considering closing a prison. They’ve done so—three, actually. And now the state is looking at closing even more.

That’s because statisticians in that state expect 2,600 to 3,600 more beds will be empty by the summer of 2014.

The reasons Colorado has seen such a significant drop in prison populations are varied. From an aging population, to more effective substance abuse reduction tactics, to gang-intervention programs, to swift-and-sure probation and supervision policies, the state is housing 7,500 fewer inmates than what was projected for this year.

And when the state tacks on around 3,000 beds to that figure, Colorado could close anywhere from two to ten facilities. Now Colorado legislators are faced with making the decisions of which facilities to close—which is a pretty fiscally fortunate decision to have to make.

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Common Sense Discipline in Denver Schools

Between 2009 and 2011, enrollment in Denver schools rose six percent. But even with an increased number of students, expulsions dropped 44 percent, from 185 to 104.

Enrollment in Denver Schools

Expulsions Down in Denver Schools

That’s because the school district has adopted alternatives to zero-tolerance, such as restorative justice and conflict resolution, which seek to defuse and resolve disciplinary issues before they rise to a level demanding expulsion.

For example, de-escalation techniques can help a teacher handle a student who acts out or curses. Handling the situation in the classroom allows the student to remain in class and continue his or her education, and it reduces unnecessary reliance on the justice system to handle school misbehavior.

Out-of-school suspensions have also dropped 21 percent.

Suspensions Down in Denver Schools

These alternative techniques are essential to a more cost-efficient and effective school discipline system. The Texas Public Policy Foundation highlighted some of these techniques, as well as the ineffectiveness of zero tolerance, in recently research.

Expulsions and Suspensions in Denver Schools

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