Unfortunately, most people’s impression of the criminal justice system comes from television. Television is bad enough when it’s fiction, but even when it’s straight news, it’s horribly distorted.
As you read this, you may wonder why I of all people am bitching about this. After all, an out of control criminal justice system is good for the lawyer business. I’m bitching about it because I’m outraged, and you should be too.
How many federal crimes are there? I don’t know. And I’m not alone. Nobody knows. It’s not for want of trying. The Justice Department and the American Bar Association have tried to count them, without success. Gary Fields and John R. Emshwiller, “Many Failed Efforts to Count Nation’s Federal Criminal Laws,” Wall Street Journal, July 23, 2011. One of the problems is that Congress isn’t the only body empowered to make laws that can land you in the federal penitentiary. Federal criminal law can make violation of regulations of another country a criminal violation here. There is a collection of horror stories--except that horror stories should be rare--in another article by the same authors published the same day, “As Criminal Laws Proliferate, More Are Ensnared.”
Part of the problem is that whenever Congress decides to make a new law these days, they dispense with the “guilty mind” or mens rea requirement. That means you can violate federal criminal law without knowing it. Another part of the problem is that Congress usually imposes mandatory minimums, as if the sentencing guidelines weren’t draconian enough.
We now have, by various estimates, about one percent of our population in prison at any given time, and another two percent on probation or parole. In 2009, there were 1.3 million people in state prisions and 200,000 in federal prisons. We have far higher incarceration rates than any country in the world. Are Americans just more evil than people in every other country in the world? I’m not sure. It’s not because we commit more acts that should result in jail time. It may be because we’re so short-sighted and irrational when it comes to criminal justice that we treat our fellow citizens more harshly than any other nation on earth. Yeah, that includes communist dictatorships and Islamic republics. We have the highest incarceration rate in the world.
What do we mean by “crime,” anyway. The Cato Policy Report explains the problem fairly well:
Where once the criminal law might have stood as a well-understood and indisputable statement of shared norms in American society, now there is only a bloated compendium that looks very much like the dreaded federal tax code. The end results can be downright ugly: a soccer mom thrown in jail in a small Texas town for failing to wear a seatbelt; a 12-year-old girl arrested and handcuffed for eating french fries in a Metro station in Washington, DC; and defendants serving 25-year to life sentences in California prisons for, among other things, pilfering a slice of pizza.
Erik Luna, Cato Policy Report, Nov.Dec, 2003.
Senator Jim Webb has introduced a bill to create a commission to perform a top-to-bottom review of the criminal justice system, but in this political climate, it’s not likely to go anywhere. Next to being caught in the commission of an actual crime, the last thing any politician wants to be accused of is being “soft on crime.” Public cluelessness is even more dangerous because of the private interests that have the most to gain from a draconian criminal justice system, the lucrative private prison industry with a strong incentive to criminalize everything. Webb can introduce such a bill because he’s retiring.
A huge part of the problem is our ridiculous “War on Drugs,” but there are far too many other ridiculous laws. Part of the problem is that we never “react” to any problem. We only “overreact.” For instance, how many states are considering “Caylee’s laws” to require parents or guardians to report the disappearance of children within 24 hours or the death of a child within an hour. This is, of course, a near-non problem. When, before the Casey Anthony case, did you ever hear of any problem that such an idiotic law would remedy? Such a law would almost certainly be a violation of the Fifth Amendment--although elected judges aren’t likely to so hold. We have a right to remain silent. Government can’t make us turn ourselves in. And it is not only the guilty who have reason to fear. Let’s face it. There are some innocent people in our prisons, like it or not. You have just as much of a right not to help the state put you there if you’re innocent as you have if you’re guilty. Radley Balko did a great job of illustrating how foolish this overreaction is.
But knowing criminal law as I do, here’s the real problem. This stupid law is bad enough as it is, but once politicians start one-upping each other to make it even tougher, parent or guardian will be expanded to virtually any special relationship. It will go on and on until the next thing you know, if you get back home and your roommate is unexpectedly absent, you’ll be obliged to call the cops.
There are a lot of people who think our criminal justice system is too lenient. With all due respect, they’re idiots. Our criminal justice system should be there to punish real crimes, like murder, robbery, and the like. It’s out of control. You may not care--at least until you have to call me from the police station in the middle of the night.