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Overcriminalization and police officer safety

Some estimates show that Congress codifies more than 50 new criminal offenses a year — who do you figure is going to most often hear about that from our society’s malcontents and miscreants?

The uniformed police officer remains the most visible representative of governmental authority with whom the majority of citizens interact. As a result, local officers and deputies can readily become the symbolic target of frustration or, even worse, a lightening rod for misdirected individuals or organizations that substitute violence for political process.

Poll results reflect the frustration with all levels of government, but especially Washington. According to many surveys, a majority in our society have become disillusioned about the direction our country is taking — a large minority rejecting what they view as increasingly intrusive federal government regulation and activism. Some legal scholars, such as Philip Howard, despair at the problems associated with this regulatory growth, creating an overblown and often dysfunctional expectation of a “cult of safety” and an unprecedented expansion of federal criminal authority.

Proliferation of Federal Criminal Statutes
Since at least the 1980s, crimes listed under Title 18 of the US Code have grown astronomically. Title 18 of the US Code contains more than 4,500 offenses, and some estimates show that Congress codifies more than 50 new criminal offenses a year.1

To compound matters, Congress has given selected federal agencies authority to establish criminal penalties for regulatory violations of what most citizens should rightly see as merely civil issues. If these regulatory “crimes” are included in the count, some experts believe that federal authorities can enforce over 300,000 criminal offenses.2

Ilya Somin, a law professor at George Mason University, notes that specialization is a natural result of this increasingly “complex legal system with so many [criminal] laws...”

As a result, more than 100,000 federal officers have found a home in a variety of departments and agencies that few would suspect of needing a specialized armed capability. This list includes the National Institute of Health, the Bureau of Reclamation, the Division of Refuge Law Enforcement, the Department of Labor, the Environmental Protection Agency, and numerous offices of Inspector General to include the Department of Education.

If you think this doesn’t create problems, just ask Kenneth Wright of Stockton, California. In early June of this year, Wright came downstairs at six o’clock in the morning to find what he believed to be a SWAT team at his door. What he soon learned was that the 15 officers were not local police (which, from all accounts, declined to participate in the raid), but instead armed officers from the U.S. Department of Education who were looking in the wrong place for Wright’s estranged wife.3

It’s not surprising that government at all levels routinely proscribe behavior both inside and outside the criminal code. Special interests and vocal angry citizens often pressure lawmakers to address their most abstract civil grievances with concrete criminal legislation, diluting or even eliminating the element of criminal intent in the process. Lawmakers and bureaucrats are also prone to make their personal crusades part of the public agenda. Areas that may be most susceptible to these political whims are child welfare (especially in the areas of status offenses, such as underage drinking), the environment, drug offenses, transportation, agriculture, education, and wildlife protection.

Yes, States Follow Suit
Only the most naive would believe that the states have not followed Washington’s lead. Though many states don’t appear to officially track the growth of criminal offenses, a Texas policy think tank has made the effort. Marc Levin of the Center for Effective Justice noted that Texas lawmakers have enacted more than 1,700 criminal offenses and the state has a total of sixty-six additional felonies that are not in the Penal Code, 11 of which deal with the handling and oyster harvesting.4

Coupled with the large number of locally-established criminal offenses it is little wonder most citizens are often bewildered at the broad mandate and scope of law enforcement authority.

This may also explain why some citizens demand an immediate law enforcement remedy to their most trifling civil complaints. Civil action just doesn’t provide the immediate satisfaction of seeing a neighbor hauled away in handcuffs for blowing snow onto the wrong driveway or failing to meet their responsibilities in a contractual agreement.

One result of overcriminalization as been that the U.S. has one of the highest incarceration rates of any modern state. One in every 100 adults is behind bars, and if you include those on parole or probation, the numbers show that one in every thirty-one is under some sort of correctional supervision, in no small part because of our so-called “war on drugs.”5

Surveys suggest that many citizens demand even more laws and stronger enforcement by both Washington and local police authorities. The hot-button issue-du-jour of illegal immigration, is but one example.

It’s unlikely that legislators will roll back the number of criminal offenses or reverse the overcriminalization trend any time soon. Lawmakers will continue to pass laws so they can look “tough on crime” while some law enforcement officials will welcome new legislation as another tool to fight crime. Regardless of the motives for new legislation, local law enforcement officers will be the first to witness and experience the reaction first-hand from our society’s malcontents and miscreants.

1 John S. Baker Jr, “Revisiting the Explosive Growth of Federal Crimes,” Heritage Foundation, Legal Memorandum No. 25, June 16, 2008.
2 Brian W. Walsh, Congressional Testimony before the Subcommittee on Crime, Terrorism, and Homeland Security, Committee on the Judiciary, United States House of Representatives, September 28, 2010.
3 See C. Johnson and Leigh Paynter, “Questions Surround Feds’ Raid of Stockton Home,” June 8, 2011 (also see Kurt Nimmo, “Department of Education Posts Order for Police Shotguns,” March 10, 2010).
4 Marc Levin, “Arresting the Growth of Criminal Law in Texas,” Texas Public Policy Foundation, August 2006 (see also Marc Levin, “Overcriminalization”)
5 See “Too Many Laws, Too Many Prisoners,” The Economist, July 22, 2010.

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