In March of this year, Anthony Brasfield released a dozen heart-shaped balloons in the air as a romantic gesture for his girlfriend. After a Florida Highway Patrol officer spotted the gesture, Brasfield was charged with polluting to harm humans, animals and plants—a third degree felony punishable by up to five years in prison.
On Nov. 14, the U.S. House Judiciary Committee’s Task Force on Over-criminalization held a hearing focused on solutions to address ambiguous and expansive criminal provisions triggered by regulations.
Both lawmakers and witnesses not only expressed concerns over crimes triggered by vague regulations, but also the nature and number of crimes in general. Policymakers are correct to be troubled about overcriminalization, for the size and nature of America’s body of criminal law threatens the liberties and livelihoods of every American.
While some criminal laws and sanctions are necessary to protect safety and ensure justice, criminalized actions now include many everyday activities that average Americans and business owners have little way of knowing are crimes.
As a result, well-meaning, law-abiding individuals and businesses spend innumerable hours and dollars fending off criminal prosecution for actions they never suspected were illegal. Policymakers must take steps to ensure innocent individuals are protected from the growing number of vague and ambiguous criminal statutes.
One solution to the overcriminalization problem is to require proof of criminal intent before charging an individual with a crime. Criminal intent requirements reserve criminal sanctions for individuals who intended to act unlawfully.
Additionally, criminal intent requirements ensure public safety resources are focused on dangerous offenders, rather than hardworking Americans who are often unaware of vague and ambiguous laws.
Overcriminalization has an enormous economic impact on the business community, especially small businesses already trying to cope with the increased regulatory environment and recent recession.
Every dollar spent on overly burdensome compliance requirements or legal representation is a dollar that cannot be invested to create new jobs or provide better goods and services to consumers. There are also the indirect costs of lost opportunities for entrepreneurialism as individuals are discouraged from pursuing business interests.
Beyond the costs to businesses, taxpayers are footing the bill for investigating, prosecuting and imprisoning nonviolent individuals who may not have intended to commit a crime.
Policymakers at the federal and state levels must ensure there is a legitimate and real need for each offender to be behind bars.
There are more than 1.5 million Americans under the supervision of state and federal correctional facilities, at a cost of more than $30,000 per prisoner every year.
States cannot afford the budgetary costs of imprisoning nonviolent individuals who acted without criminal intentions, and society cannot afford the human costs of incarcerating individuals who do not need to be imprisoned to protect public safety.
The victims of overcriminalization are many and the number of criminalized actions is so immense that no one has been able to determine a conclusive total.
At the federal level, best estimates put the number of crimes at approximately 4,450 and the number of regulatory violations with criminal penalties at as many as 300,000. These federal laws are often duplicative of state or local statutes and only serve to add to the confusion.
George Norris of Spring, Texas, an elderly retiree, was imprisoned for 17 months following the importation of mislabeled orchids. He had started a part-time business importing orchids from South America and Africa and reselling them to American collectors.
Sometimes his foreign contacts did not correctly identify specific species of the plant, sending them to Norris with incorrect paperwork. Norris was unlucky enough to sell a few of these mislabeled plants to an undercover federal agent. This action resulted in six armed agents ransacking Norris’ home and a 17-month prison sentence.
The untethered expansion of the number of criminal laws has been accompanied by an equally troubling change to the character of many criminal statutes. Criminal laws and sanctions are now being used as the tool of elected officials and unelected bureaucrats to regulate business activities or behavior they deem undesirable instead of its traditional role of protecting communities and ensuring justice.
Behavior that is illegal simply because the law makes it so, rather than because it is morally blameworthy, constitutes a growing percentage of all criminalized conduct.
For the purposes of regulation, market forces and civil or administrative penalties such as fines are better suited than criminal sanctions.
New crimes are unwittingly created every day through legislation without full consideration of the impact on the rights of Americans, or of the cost to taxpayers and the economy.
The incarceration of an individual who had no intent to do harm or any knowledge that his actions were illegal leads to fiscally irresponsible spending and an inefficient and unjust criminal justice system.
Policymakers should prioritize criminal justice spending and reserve precious public safety resources by carefully considering what constitutes criminal actions and requiring the government to prove an individual acted with ill intent to prosecute them for everyday activities they had no idea were illegal.
Cara Sullivan is the director of the American Legislative Exchange Council Justice Performance Project (www.alec.org).