Americans are a bunch of criminals. That’s a true statement when you look at the sheer volume of laws on the books. Whether it’s the arcane tax code or litany of violations for simply going about your daily life, Americans are being criminalized for just about everything. Criminal justice reform needs to be a priority for America to remain a country of law and order.
By Terri Hall l February 8, 2017
Americans are a bunch of criminals. That’s a true statement when you look at the sheer volume of laws on the books. Whether it’s the arcane tax code or litany of violations for simply going about your daily life, Americans are being criminalized for just about everything. In Texas, lawmakers are taking a serious look at how to dial back dozens of laws that over criminalize behavior.
At the 2017 Texas Public Policy Foundation Policy Orientation, legislators discussed the purpose of criminal law and how the average citizen can no longer know what the law is much less obey it. With 50 bills already filed in the Texas legislature that began January 10 creating new crimes, the problem is rampant and must be aggressively addressed if we’re to remain a nation of both law and order and individual freedom.
Vikrant Reddy, a Senior Fellow at the Charles Koch Institute and Research Assistant at Cato Institute, described the purpose of criminal law: 1) incapacitation (take immediate threats to public safety off the streets), 2) deterrence, 3) rehabilitation, and, 4) retribution. When laws take on the form of criminalizing behavior most would never classify as criminal, the country is in danger of losing its grip on authentic law and order. America has long surpassed the ability of the average citizen even knowing what the law is.
Shannon Edmonds, Director of Texas District Attorneys Association, asked, “What makes a crime a crime? If someone didn’t knowingly do something, we usually don’t prosecute.”
That’s a dangerous slippery slope according to State Representative Matt Rinaldi. Despite he and his colleagues attempts to address the problem when the Texas legislature last met two years ago, criminalizing behavior people don’t think of as crime continues, like ‘unlawful’ bingo games and laws where you could go to jail for ‘thrashing pecans.’ In Texas, you could also do jail time for slandering a savings and loan, practicing acupuncture without a license, a rail company or phone company selling a free pass for anything but money, peddling of printed matter by a deaf or mute person, or fishing for shrimp out of season.
Many of these laws were discovered due to the work of Representative Matt Krause, who amended House Bill 1396 last session to require a commission to study hundreds of Texas laws to determine if they should carry a criminal penalty and remain in the penal code or not. The Commission’s study entitled Commission to Study and Review Certain Penal Laws, identifies hundreds of laws that need to declassify violations that now carry a criminal penalty and move some into the civil realm or off the books altogether.
Two areas rife for abuse are text/mobile phone bans and occupational licensing. The patchwork quilt of text and mobile phone regulations creates a system where few drivers can track what they can and can’t do with their phones while driving as they travel in and between cities with varying ordinances. The confusion creates law and order chaos and widespread noncompliance. Some would argue the problem could be solved with a statewide ban for uniformity, but studies show micromanaging phone use in vehicles has actually increased accidents and made driving conditions less safe as people look down to hide touching their phones.
The area of occupational licensing steps way over the line of what’s necessary for health and safety. When roofers need to be ‘certified’ in order to be considered ‘legal’ to perform their work, there’s a problem. If a roofer does a poor job, the homeowner can sue for damages in court. The state doesn’t need to license all roofers in order for harmed citizens to have a remedy.
Rinaldi framed it in these terms, “We should only require licensing for occupations where health and safety need to be protected and where there is no judicial remedy. There must be a standard. The excuse is always health and safety, but there must be a substantial risk to public health and safety. Citizens Fourth Amendment rights need to be upheld, they need to be given the benefit of the doubt during trial, and then if convicted, given a punishment that fits the crime.”
Our criminal justice system no longer sticks to those principles. Edmonds cited examples where legislation used to create an administrative, civil and criminal penalty all for the same offense. So while Texas legislators still have their work cut out for them, the issue is definitely on the radar. The federal government suffers from the same abuses. Under a Trump administration and with the help of scholars like Reddy, it’s more likely to be addressed there, too. Reddy identified the areas of drugs and mental health as the areas where much of the overcriminalization problem exists., and that’s likely where reforms will begin. Regardless, criminal justice reform needs to be a priority for America to remain a country of law and order.
Terri Hall is the founder of Texans Uniting for Reform and Freedom (TURF), which defends against eminent domain abuse and promotes non-toll transportation solutions. She’s a home school mother of ten turned citizen activist. Ms. Hall is also a contributor to SFPPR News & Analysis of the conservative-online-journalism center at the Washington-based Selous Foundation for Public Policy Research.