America has a serious overcriminalization problem

Last month, the 114th Congress was sworn in and each Member officially declared his or her intention to follow the U.S. Constitution.

Unofficially however, both parties have made vows that could make even incremental progress on bringing the federal government back within its constitutional limits nearly impossible.

However, there is one area of public policy that has long had bipartisan support for change — overcriminalization, an issue that affects literally every single American and is so important that it brought the Heritage Foundation and the American Civil Liberties Union (ACLU) together to find solutions.

According to John Malcolm, who heads Heritage’s Meese Center, “overcriminalization is the overuse, abuse, and misuse of criminal laws to regulate conduct that your average person would not view as being inherently wrongful.”

“So when people engage in actions that cause harm,” Malcolm explained to me, “it is one thing to punish that person through a civil fine or an administrative punishment such as licensing. It’s another thing to brand somebody a criminal — to deprive them of their liberty.”

The federal law book is so large and complex that it is not known how many crimes exist. Koch Industries’ General Counsel Mark Holden told me one estimate is that “the number of laws at the federal level has gone from about 3,000 in the 1980s to about 4,500 now.”

“Ordinary citizens don’t always know what the rules are anymore, and they can’t always afford to defend themselves when they are caught unintentionally breaking the law,” said Holden.

According to Holden, overcriminalization isn’t just about preventing bad laws — it’s also about how the system treats the accused.

“Sentencing disparities are also very important to address,” said Holden. He specifically noted the disparity in punishments between those caught with crack and powder cocaine.

“Some believed that this disparity was based on race and led to a disproportionate number of minorities being sentenced for crack cocaine offenses, [which] led Congress in 2010 to lessen the disparity,” he said.

Holden said that post-prison reform is also critical so that “non-violent, usually young, offenders are given another a second chance to fulfill their potential by having certain of their rights restored so they can get a job.”

Possibly the most famous recent victim of overcriminalization is Eric Garner, who died in August after a confrontation with police over untaxed cigarettes.

As Senator Rand Paul (R-Ky.) pointed out, “some politician put a tax of $5.85 on a pack of cigarettes,” which led “some politician…to direct the police to say, ‘Hey, we want you arresting people for selling a loose cigarette.'”

Paul’s argument also holds true for federal laws that make marijuana illegal. Not only has the War on Drugs been a fiscal failure, but it’s also hurt the overall stability of families nationwide.

Furthermore, like high taxes, enforcement requires larger, more expansive government and more interaction between police and citizens — thus providing more chances for things to go very wrong.

Many conservatives rightly argue that if Garner had followed the law, he would still be alive. But that does not take away from the truth that a justice system should maximize liberty and protect society — not set ordinary citizens and law enforcement up for failure.

Dustin Siggins About the author:
Dustin Siggins is the Washington, D.C. correspondent for and a co-author of the forthcoming book, Bankrupt Legacy: The Future of the Debt-Paying Generation. Follow him on Twitter @DustinSiggins
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