Overcriminalization, the overuse or misuse of criminal law to address societal problems, is a troubling phenomenon that touches every segment of society. It manifests itself in a variety of ways, including overly broad definitions of criminal acts, excessively harsh sentencing and criminal sanctions for simple mistakes or accidents.
However, overcriminalization has a more tangible aspect beyond legislation and legal theory: For every problematic law or criminal procedure, there is a victim with a story to tell.
Those victims include three fishermen in Florida sentenced to more than six years in prison for importing lobsters packed in plastic rather than paper, a North Carolina man jailed for 45 days for selling hot dogs without a license, and an autistic teenager from Pennsylvania threatened with wiretapping charges after he recorded being bullied by classmates.
American citizens all too often find themselves trapped by the very system that they assumed existed for their protection, and prosecuted for crimes that most people would not even recognize as criminal offenses.
Reporting stories of people who have been needlessly and callously caught up in the criminal justice system has a two-fold benefit: First, it informs the public of the serious nature of overcriminalization and how it could equally harm them too. Second, it exposes public officials and law-enforcement officers who engage in misbehavior or exercise terrible judgment.
Consider the following examples:
▪ Lazaro Estrada was arrested and charged with obstruction of justice for simply filming a Miami police officer who arrested his friend. Despite the fact that citizens should be presumptively free under the First Amendment to film officers in public places, Estrada faced significant punishment for turning on his camera. After his video of the incident went viral, the charges against Estrada were dropped.
▪ Arnold Abbott, a 90-year-old charity worker from Fort Lauderdale, Fla., was threatened with arrest and a $500 fine for feeding homeless people in the local city park. A city ordinance required Abbott to comply with strict food handling and facility regulations – a mandate that would have made it nearly impossible to feed hungry people. Publicity from major news outlets soon prompted city officials to allow Abbott to continue his charitable works.
▪ Shaneen Allen, a single mother from Pennsylvania, was arrested after being pulled over for a traffic violation and the officer was informed that she had a handgun in her car. Allen, who had legally registered the gun in her home state, mistakenly assumed that it was legal for her to travel with it for protection across state lines. Her mistake could have sent her to prison for three years. After immense media pressure, the prosecutor allowed Allen to enter a diversion program, and New Jersey Gov. Chris Christie subsequently pardoned her.
There are many more stories of victims that have not received media attention. Although we should applaud the decision of public officials who eventually recognized that they had overstepped their authority and reversed course, there is still much more to be done. Many voices go unheard.
Our Founders warned us long ago about the dangers of an expansive legal system that arbitrarily creates and enforces numerous criminal laws. James Madison, writing in the Federalist Papers, stated:
“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”
When ordinary people are turned into criminals for engaging in morally blameless behavior, the legitimacy of the justice system is undermined. Serious reform is essential.
Criminal justice reform is about more than policy debates in Congress or legal procedure. It is about how the lives and fortunes of ordinary Americans are threatened by abuse of the law. The criminal justice reform movement should focus on telling the stories of those who are affected by an overly zealous government and the excessive power of the state.
Only by identifying the problem and highlighting why it matters will any meaningful change take place. Overcriminalization is not an easy problem to solve, but it is one that demands our attention.
Jordan Richardson is a former visiting legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation, www.heritage.org.