We Need Fewer Laws: Over-Criminalization Hurts the Innocent and Empowers Government
December 11, 2014 by Dan Mitchell
I wrote last week about the lunacy of a tax system that created the conditions that led to the death of Eric Garner in New York City.
But I wrote that column in the context of how high tax rates lead to tax avoidance and tax evasion. Let’s now zoom out and look at the bigger picture.
Using the Garner case as a springboard, George Will explains that we have too many laws.
Garner died at the dangerous intersection of something wise, known as “broken windows” policing, and something worse than foolish: decades of overcriminalization. …when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes. Harvey Silverglate, a civil liberties attorney, titled his 2009 book “Three Felonies a Day” to indicate how easily we can fall afoul of the United States’ metastasizing body of criminal laws. Professor Douglas Husak of Rutgers University says that approximately 70 percent of American adults have, usually unwittingly, committed a crime for which they could be imprisoned. …The scandal of mass incarceration is partly produced by the frivolity of the political class, which uses the multiplication of criminal offenses as a form of moral exhibitionism. This, like Eric Garner’s death, is a pebble in the mountain of evidence that American government is increasingly characterized by an ugly and sometimes lethal irresponsibility.
I don’t know if Americans actually do commit three felonies each day, and I also don’t know if 70 percent of us have committed offenses punishable by jail time, but I certainly wouldn’t be surprised to learn that these numbers are correct.
They may even be understated.
This Eric Allie cartoon is a good example, and definitely will get added to my collection of images that capture the essence of government.
In other words, George Will wasn’t exaggerating when he wrote that, “American government is increasingly characterized by an ugly and sometimes lethal irresponsibility.”
Writing for Bloomberg, Professor Steven Carter of Yale Law School has a similar perspective.
I always counsel my first-year students never to support a law they are not willing to kill to enforce. …I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you. I wish this caution were only theoretical. It isn’t. …It’s not just cigarette tax laws that can lead to the death of those the police seek to arrest. It’s every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they’re right. …it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won’t lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand.
A just society should have very few laws, and those laws should be both easy to understand and they should focus on protecting life, liberty, and property.
Sadly, that’s not a good description for what now exists in America. Professor Carter explains.
…federal law alone includes more than 3,000 crimes, fewer than half of which found in the Federal Criminal Code. The rest are scattered through other statutes. A citizen who wants to abide by the law has no quick and easy way to find out what the law actually is — a violation of the traditional principle that the state cannot punish without fair notice. In addition to these statutes, he writes, an astonishing 300,000 or more federal regulations may be enforceable through criminal punishment in the discretion of an administrative agency. Nobody knows the number for sure. Husak cites estimates that more than 70 percent of American adults have committed a crime that could lead to imprisonment. …making an offense criminal also means that the police will go armed to enforce it. Overcriminalization matters… Every new law requires enforcement; every act of enforcement includes the possibility of violence. …Don’t ever fight to make something illegal unless you’re willing to risk the lives of your fellow citizens to get your way.
Which is a good description of why I’m a libertarian notwithstanding my personal conservatism.
I don’t like drugs, but I’m not willing to let someone else get killed because they have a different perspective.
I don’t like gambling, but I don’t want another person to die because they want to play cards.
I don’t like prostitution, but it’s awful to think someone could lose his life because he paid for sex.
This Glenn McCoy cartoon summarizes what’s happening far too often in this country.
P.S. Since this has been a depressing topic, let’s close by switching to some good news.
Here’s one result that put a smile on my face.
And here’s a breakdown that’s also encouraging. Note how blacks have become much more supportive of gun rights.
I guess this means “Stretch” and “R.J.” have a lot more support than just two years ago.
And it’s worth noting that cops have the same perspective.
In other words, these are not fun times for gun grabbers.