April 15, 2015

The end of innocents

By Ethan W. Blevins Attorney

An 11-year old girl saved a woodpecker from a cat and nursed it back to health. A father and son searched for arrowheads while camping. A middle schooler ate some french fries on the subway. A snowmobiler got lost for two days in a blizzard and almost died. These stories have one thing in common–they all constitute crimes. And in each case, government agents pursued these criminals with zeal.

PLF has fought against America’s overcriminalization problem in a variety of settings. About fifteen years ago, we wrote an amicus brief in one of the more tragic cases of crimes gone wild–Hanousek v. United States. Ed Hanousek had been a supervisor on a rock-quarrying project. On Ed’s day off, a contractor at the work site accidentally ruptured an oil pipeline when he strayed away from the project area. So the feds charged Ed with a federal crime and jailed him for six months, put him in a half-way house for another six months, kept him on supervised release for six months more, and slapped him with a $5000 fine. We argued in our brief to the United States Supreme Court that proof of a guilty mind ought to be required for criminal conviction, especially if jail time and substantial fines are involved. Sadly, the Court declined to hear the case. Thankfully, however, overcriminalization is getting more attention.

When everyday actions are crimes, something’s amiss. The average American is said to commit three felonies a day as each of us goes about innocent routines. It often doesn’t even matter if you lack malice or criminal intent. The only thing that may keep any one of us from the hoosegow is the inability of the government to constantly police the staggering number of activities that it has forbidden.

Crimes abound. In 2008, the U.S. code contained 4,450 criminal offenses. These federal crimes only account, though, for a small number of total federal crimes, given the number of criminal offenses created by federal departments and agencies. In fact, the Congressional Research Service has admitted that it cannot count the total number of federal criminal offenses. Best guess? “Tens of thousands.” Moreover, this estimate doesn’t even hint at the quantity of criminal offenses that states, counties, and cities churn out.

The law is so vast and complex that only a pricey gaggle of lawyers could advise you on the legality of daily living. Even then, many laws are so vague that no one can predict whether certain conduct is a crime or not. The result: a world in which normal people with no malicious intentions unwittingly end up with a rap sheet.

The wild growth of criminal offenses is a direct consequence of a flawed ideology. Because many have come to rely on the government as the handyman for all social ills, courts and officials have loosened the collar of the Constitution. We’ve seen a weakening of the separation of powers through increasingly powerful administrative agencies that create and enforce regulatory crimes. Nonetheless, because constant intervention in individuals’ lives has become an acceptable means of pursuing policy objectives, this centralization of power has often gone unchecked. The liberties promised in the Bill of Rights have suffered similar erosion. Those who would limit economic liberty to support mandated work hour limits might recoil at the idea that an unlicensed repair guy could face criminal charges for advertising his services on Craigslist. Many of the same folks who call for fracking bans might be disgusted when the government shuts down a little girl’s cupcake shop because she used her home kitchen. Yet the same restraint on liberty that lets government promote “social justice” also opens the door to abuse. Any who believe that liberty should bow to their social or economic agenda should recognize that they thus pave the road to oppression. When folks use government to limit uses of liberty that they don’t like, they may be signing their own future guilty plea.

 

 

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