Pubdate: Fri, 17 Jun 2005
Source: Baltimore Sun (MD)
Copyright: 2005 The Baltimore Sun, a Times Mirror Newspaper.
Contact:  http://www.baltimoresun.com/
Details: http://www.mapinc.org/media/37
Author: Gene Healy
Note: Gene Healy is senior editor at the Cato Institute and editor of Go
Directly to Jail: The Criminalization of Almost Everything

CRIMINALIZATION OUT OF CONTROL

WASHINGTON - Drug warriors in Congress are considering a bill that
would send parents to jail for at least three years if they learn of
drug activity near their children and fail to report it to authorities
within 24 hours.

One wonders if this a good idea, especially in areas such as
Baltimore, where intimidation and murder of government witnesses are
common. But when it comes to the criminal law, Congress rarely pauses
for reflection anymore.

In April, the bill's author, Republican Rep. F. James Sensenbrenner
Jr. of Wisconsin, floated what might be called the "Jail Janet
Jackson" initiative. Instead of enforcing the Federal Communications
Commission's indecency regulations with fines on broadcasters,
according to Mr. Sensenbrenner, those who violate the regulations
should be subject to arrest and imprisonment.

"I'd prefer using the criminal process rather than the regulatory
process," he said. "Aim the cannon specifically at the people
committing the offenses."

There are serious problems with Mr. Sensenbrenner's proposal. The
FCC's indecency standards are notoriously vague and of dubious
constitutionality. How could a policy that says "misspeak and go to
jail" not end up chilling constitutionally protected speech?

More fundamentally, is this an appropriate use of the criminal
sanction? Do we really want to lock people up for bad taste?

Mr. Sensenbrenner's jail-centric approach reflects a broader social
phenomenon, and a troubling one. The criminal sanction is supposed to
be a last resort, reserved for the most serious offenses to civil
peace. But more and more, it's becoming government's first line of
attack - a way for lawmakers to show that they're serious about
whatever is the perceived social problem of the month.

Examples of reflexive criminalization abound. A bill to prevent the
transportation of horses for human consumption has 80 co-sponsors in
Congress. If signed into law, it would join such illustrious federal
crimes as the interstate transport of water hyacinths, trafficking in
unlicensed dentures and misappropriating the likeness of Woodsy Owl
and his associated slogan, "Give a hoot, don't pollute" (punishable by
up to six months in prison).

Because Congress criminalizes unreflectively, the federal criminal
code has become vast and incomprehensible. A research team led by
professor John Baker of Louisiana State Law School recently estimated
that there are more than 4,000 separate federal criminal offenses.
That number, inexact as it is, vastly understates the breadth of the
criminal law, because the federal criminal code, in turn, incorporates
by reference tens of thousands of regulatory violations never voted on
by Congress.

And this burgeoning culture of criminalization reverberates down the
law enforcement ladder as local police increasingly use handcuffs and
jail to deal with situations that clearly don't warrant it. In
September, at a Washington, D.C., bus stop, a Metro transit officer
forced a pregnant woman to the ground and handcuffed her for talking
too loudly on her cell phone. In April, in St. Petersburg, Fla.,
police were called into an elementary school to handcuff an unruly
5-year-old girl.

One of our most destructive overcriminalization binges occurred during
the "Just Say No" era, when Congress embraced mandatory minimum
sentencing as a way to deal with the use of illicit drugs. Making
prison the solution to drug abuse has had staggering social costs.

There are eight times as many women in prison as there were in 1980,
and the drug war is a key factor in driving the incarceration rate. In
2001, the average federal drug trafficking sentence was 72.7 months,
more than double the average manslaughter sentence. In addition to
sending parents to jail for failure to testify against drug dealers,
Mr. Sensenbrenner's bill would extend and enhance mandatory minimum
drug penalties, adding to the social costs of the drug war.

The congressman is right to compare the criminal law to a cannon: The
criminal sanction is heavy artillery. It ought to be reserved for
those behaviors that warrant society's strongest condemnation and the
loss of liberty that such behavior merits. Wielding the cannon
indiscriminately causes tremendous collateral damage.

Decrying overcriminalization does not mean being soft on crime. Just
the opposite: Being tough on crime requires making intelligent
distinctions between conduct that truly threatens the public and
conduct better handled by fines or civil law, to say nothing of
conduct that's really none of the government's business. Those who
can't make those distinctions, far from being tough on crime, actually
weaken the moral force of the criminal law. That's a crime in itself.
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MAP posted-by: Larry Seguin