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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Looking at Corrections in Colorado

For a variety of reasons, corrections and criminal justice issues in Colorado have earned increased attention from the legislature.

Legislators looking for cost savings in the state budget are wondering why corrections spending is up almost 30 percent over eight years—even though the number of inmates is the same as it was in 2004. Colorado has apparently increased its per-inmate expenditures from $24,000 per year to $31,200 per year. Corrections officials point to increased costs for health care, utilities, and transportation, but legislators are determining whether cost-cutting measures might be possible, including prison closures, if there enough empty beds to warrant it.

One facility targeted for potential closure is so new that it won’t even be paid off until 2021. But shrinking offender populations and empty beds in other facilities suggest that simply closing the facility might actually make more sense. But Colorado’s legislators are first making sure that a possible prison closure is carried out with public safety implications in mind. For instance, legislators may seek to limit the number of prisoners who are directly released out of solitary confinement.

Furthermore, Colorado is considering proposals that would reduce the number of drug possession offenders entering the prison system. A bipartisan effort is underway to reclassify certain low-level drug possession charges from the lowest possible felony charge to the highest possible misdemeanor charge. These reforms would allow a portion of the savings to be reinvested into drug treatment programs.

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Colorado Imports Intensive Reentry from Canada

In Colorado, as in Texas state jails, many inmates are simply released after serving their terms without any supervision, tracking, or reentry guidance to obtain a job, housing, or solid plan for beginning a free life.

But one program in Colorado aims to change this approach—after seeing its success in Canada. The “Long-Term Offender Program” only is open to certain inmates in Colorado—those 45 and older, with a prison term of at least 15 years, and excluding sex offenders and arsonist. Inmates must have behaved well while in prison, acknowledged their crimes, and expressed remorse.

If accepted, inmates are first paired with a mentor—another former inmate who has already gone through the reentry experience and can provide first-hand guidance. The inmate then attends pre-release programming while in prison, which provides job training, develops technology skills, counseling, and seminars on families and victims. The program requires inmates to develop a “transition plan,” which specifically outlines their plans to get a job, housing, and financial issues.

At that point, a selection committee determines whether to approve the inmate to participate in a work release program, where the inmate works during the day and reports to a county jail in the evenings to sleep. If the inmate successfully completes the work release requirements, he can then transfer to a halfway house for a very small portion of the end of his or her term, a cheaper alternative to prison beds that still provide supervision. If that term is successful, the inmate can step down to an ankle monitoring system for one year, with additional parole supervision for five more years after that.

Such a gradual step-down provides intense supervision until corrections officials can have more assurance that ex-offenders are ready for a life beyond bars. In addition, the focus on gainful employment and steady housing can prevent two of the biggest predictors of recidivism (joblessness and homelessness) from affecting this class of offenders.

This program emerges as other states, and even the federal government, consider more intensive reentry programming as a way to reduce recidivism and put ex-offenders on the right track.

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Colorado Legislators Take on “Collateral Consequences”

Conservatives in Colorado should be paying close attention to new legislative efforts to address a problem that is ignored far too often: collateral consequences.

Late last year, National Review published a piece by Mitch Pearlstein, in which he explained that “[c]ollateral sanctions [or consequences] include any legal penalty, disability, or disadvantage imposed automatically upon conviction: for example, ineligibility for various jobs, such as school-bus driver or property manager for an apartment building. Collateral consequences encompass the full range of bad things and debilitating restrictions—official or unofficial, codified or not—that regularly confront people after they’ve served their sentences.”

Interestingly, Pearlstein noted that collateral consequences, which some lawmakers applaud, have a detrimental effect on marriage rates, and in the long run, this problem likely contributes to increased recidivism: “Research verifies common sense by showing that married men are less likely than single men to break the law. Getting married is thus a good way for a man to help himself avoid getting locked up. But what about single men who have already been charged with committing crimes? They are less attractive marriage partners, not just because they may be incarcerated, but because rap sheets are not conducive to good-paying, family-supporting jobs. By not marrying, they lose a major source of support in straightening out their lives. How can they escape this trap?”

It is a significant problem and one that Colorado legislators are taking seriously. On February 13th, the Colorado Senate Judiciary Committee passed a bill which grants courts the discretion to remove various collateral consequences that affect employment, licensing, and housing for offenders who have been held accountable and served their sentences. The bill, which is known as the Restoration for People with Criminal Records Act, would also seal records of petty offenses that were not previously sealable in Colorado. Senator Pat Steadman, the sponsor, has an extensive write-up of the bill on his website. He notes, in part that “[s]tudies have shown that the biggest indicators of success after prison are stable employment and housing, [but w]ithout these supports, people released from prison are likely to be part of our unfortunately high recidivism rate.” At the February 13th committee hearing, Senator Steadman asked perhaps the most important question of all: “Does this particular prohibition on felons really make the public safer?”

Follow the progress of the Colorado bill here. It is also worth reading Professor Michael Sweig’s interesting personal testimony on the bill here.

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Arresting School Kids: Tide Turns Against Zero Tolerance

Several news stories across the United States last month focused on the alarming increase in the number of students arrested inside public schools—and for alarmingly minor behavior.

The Justice Policy Institute recently released a large study on the use of police officers in schools and the resulting arrest rates of students. The report discusses how reports of victimization and bullying have no correlation, positive or negative, with the presence of police officers in schools.

Further, schools with in-house police officers are funneling more kids into the juvenile justice system. A study of such schools found that five times as many students were arrested for disorderly conduct at those schools, even when controlling for economic factors.

More evaluation is needed of circumstances in each school and district so that policymakers can determine the extent to which police are actually necessary. While some law enforcement presence might be needed in certain locations at certain times, that presence should be clearly related to a function that cannot be better performed by other types of personnel. For example, ticketing a student for chewing gum, as has happened in Texas, is an example of minor misbehavior that would have been handled better through other means — and by educational personnel. Securing a campus from outside threats, on the other hand, falls well within the role that law enforcement is uniquely qualified to fill.

Arresting kids for minor misbehavior that would more appropriately be addressed by school and parental discipline imposes a high cost on the juvenile justice system, and states are taking notice.

Florida passed a law two years ago to restrict arrests to “serious safety threats” on school campuses, aiming to decrease the rate of juveniles arrested for misbehavior. In that state, schoolyard arrests reached an all-time high of 28,000 in the 2004-2005 school year. Lawmakers fear that the new law hasn’t had enough of an impact on these arrests, and they plan to consider civil citations, counseling, and mentoring options, or even more strict limits on arrests.

Massachusetts stakeholders will be releasing a report on this practice in the early part of next year, while a bipartisan legislative taskforce in Colorado plans to introduce a bill reinstating discretion at the local level and eliminating some mandatory expulsion policies.

Decreasing the number of kids arrested for non-criminal behavior is a step in the right direction for every state in the union, because the result is likely to be lower costs and more kids graduating from school to lead productive, law-abiding lives.

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Shutting Down Juvenile Lock-Ups in Colorado

This news story is heartening: the rate of juvenile incarceration in Colorado has dropped precipitously in the last few years, allowing the state to close two youth detention centers.

Since 2006, youth incarceration in Colorado has dropped 32% — from 1,480 to 1,000. And the best news is that this drop is not merely due to drops in juvenile arrests, but rather a focus on the root causes of juvenile crime (like substance abuse and family conflict) as well as an increased use of community-based programs.

Texas also recently shut down three juvenile facilities. As state budgets are squeezed tighter, reforming juvenile justice systems away from the traditional model of costly, remote incarceration facilities and towards community-based alternatives and smarter sentencing practices is a smart way to cut costs while providing effective treatment for juveniles. Colorado’s closures—along with mirrored efforts across the nation–can truly be called win-win.

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