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Too Many Laws…And The Overcriminalization Of America

In 2010, hearings were held in Washington titled “Reining in Overcriminalization: Assessing the Problems, Proposing Solutions” (the full text of the testimony of the September 28, 2010 hearing is available at https://judiciary.house.gov/hearings/hear_100928.html). A criminal defense lawyer testified that “no one, including the government, can state how many criminal offenses exist in the federal code or in federal regulations.  It is impossible for practitioners who specialize in this area to know all the conduct that is criminalized.”  And if criminal lawyers don’t know, how can the average citizen?  There are around 4,500 criminal offenses in the U.S. Code and tens of thousands in the Code of Federal Regulations – a number that one witness called “beyond reason and comprehension.”  And this massive tangle of federal laws and regulations doesn’t even include the laws and regulations of all the individual states (and 40,000 new laws across the country have just gone into effect as we turned the corner into the New Year on January 1st).

When it comes to federal criminal laws, has America gone off the deep end?  The answer is yes!  We have too many federal laws … too many arrests…too many convictions — and too many prisoners. And, if we continue on this path, it will only get worse.  Much worse.

Have people changed?  Are more Americans becoming hard-core criminals? No, what has changed over the past 30 or 40 years is the number, complexity and scope of criminal laws.  The American Bar Association found in 1998 that “more than a quarter of the federal criminal provisions enacted since the Civil War have been enacted within the sixteen year period since 1980.” Many more have been enacted since!  A century ago, criminal law was mostly about criminal acts that everyone understood to be wrong and unlawful – such as murder, rape, robbery, assault, theft, etc.  Bad conduct was punished via these and other basic criminal laws.  In recent years, however, a plethora of new criminal “laws” have been enacted and enforced – threatening to turn unsuspecting, respectable citizens into criminals.

For example, auto-racing champion Bobby Unser became lost in a blizzard and unknowingly entered federally protected land with his snowmobile.  He nearly died and had to be hospitalized after a two-day ordeal in sub-zero temperatures.  Although he had no reason to believe he was anywhere near protected land, he was found guilty of operating a motorized vehicle in a National Wilderness area, a crime that carries up to a $5,000 fine and six months in prison.

We could go on and on about cases of the ridiculous enforcement of laws that have been enacted that have made news in recent years – such as “the 12 year old girl arrested and handcuffed for eating one French fry on the Washington subway system” … or “the cancer-ridden grandmother arrested and criminally charged for refusing to trim her hedges the way officials in Palo Alto, California were trying to force her to” (see www.heritage.org/research/commentary/2010/05/too-many-laws-turn-innocents-into-criminals).

Yes, these cases point to the sheer lunacy of the turn that criminal law has taken with the creation of so many new, and unnecessary, laws – many which don’t even require an intention to break them.  But what is more disturbing is the number of individuals now in our prison system serving time for crimes that probably shouldn’t even be a crime at all.

America is the world’s Number One incarcerator.  A few years ago the Pew Foundation reported that a staggering number — 2,319,258 Americans –were in jail or prison … translating to one out of every 100 adults (see www.usatoday.com/news/nation/2008-02-28-1219547937_x.htm.)  Most likely, the numbers are even higher today.  Of course, there are certainly people in jail who should be incarcerated – but what about the many low-risk offenders who are currently serving time… or those who really haven’t committed what is traditionally believed to be a crime?

As we move forward into 2012, it’s time we take a closer look at our system – and an even closer look at why these new laws are being created, enacted – and enforced – in the first place.  Why are so many laws being passed?  That’s the topic we’ll address in a future blog as we bring to light why today’s politicians – eager to “show” the public their contributions by creating and signing new laws into effect – are responsible for creating an excessive maze of laws that serve no public good.

The overcriminalization of America is a serious topic – as well as a serious threat to our nation and our entire system of government.  It’s also a topic we feel very strongly about at Collins, McDonald & Gann  – as we fight to protect the rights of those individuals charged with any type of crime.  If you or someone you know has been charged with a crime, call us 24/7 at 516-294-0300 to discuss how we can help ensure that your rights are protected.

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