April 22, 2010
By Edwin Meese III
America is in the throes of “overcriminalization.” We are making and enforcing far too many criminal laws that create traps for the innocent but unwary -- and threaten to turn otherwise respectable, law-abiding citizens into criminals.
Consider a few examples from the new book “One Nation Under Arrest”:
I could go on, but all these stories share one thing in common – they are about average Americans. Most involve a man or woman who works hard and pays taxes, cares for family members and is a good neighbor. Perhaps above all, this person strives to stay on the right side of the law. This average American holds deep and often intuitive beliefs in basic principles about American government, including a belief that, if you do what’s right, you have nothing to fear from your own government, and certainly not from the criminal justice system.
But the average American’s deeply held beliefs about the freedoms he cherishes and the fundamental principles of his government are no longer as well-founded as they once were. Today, he is far more vulnerable than ever before to being caught up in a criminal investigation and prosecution -- and to actually being convicted and punished as a criminal -- for having done something he did not even suspect was illegal.
Criminal law has changed in the last 50 years. Once criminal law was about criminal acts that everyone knew were inherently unlawful (like murder, rape and robbery). Limiting criminal punishment to conduct that is inherently wrongful restricted governmental power in two important ways.
First, and most important, it kept the range of governmental power small. Having few criminal laws and a short list of things not to be done limited the scope within which government can exercise its authority.
Second, a limited criminal law served a teaching function. It reflected the beliefs and understandings common to the vast majority of our citizens -- the very citizens who were subject to the criminal law.
Today, the criminal law has grown as broad as the regulatory state in its sheer size and scope. In 1998, an American Bar Association task force estimated that there were more than 3,000 federal criminal offenses scattered throughout the 50 titles of the United States Code. Just six years later, a leading expert on the overcriminalization problem, Professor John S. Baker, Jr., published a study estimating that the number exceeded 4,000. As the ABA task force reported, the body of federal criminal law is “[s]o large… that there is no conveniently accessible, complete list of federal crimes.” If “ignorance of the law is no excuse,” then every American citizen -- literally, every single one -- is ignorant and in peril, for nobody can know all the laws that govern their behavior.
A just criminal justice system, in the best sense of the word “just,” has a twofold goal. One is to see that criminals are prosecuted, convicted and appropriately punished. The other is to ensure that those who are innocent are either not prosecuted in the first instance or, if mistakenly prosecuted, are not convicted.
Today, our system fails the second of those goals.
Much is at stake for our freedoms and the freedoms of future generations. The problem of overcriminalization merits extensive study and debate by legal experts and policymakers, as well as average Americans, whose fundamental liberty is most at stake.
Many constructive changes could make our justice system fairer and more just, and improve its ability to deter wrongdoing and punish real criminals. Taking the steps necessary to ensure that American criminal law once again routinely exemplifies the right principles and purposes will require much work, but the alternative is to distort the American criminal justice system, and jeopardize the American people.
Edwin Meese III, a former U.S. Attorney General, is chairman of the Center for Legal and Judicial Studies at The Heritage Foundation
First appeared on the McClatchy Tribune News Service
Edwin Meese III
Ronald Reagan Distinguished Fellow Emeritus
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