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Sometimes, There Ought Not To Be a Law

To see the national trend toward “overcriminalization” in action, consider New Mexico.

In his 2005 State of the State address, Gov. Bill Richardson labeled 2004 “the year of the legislature.” And it looks as if some Santa Fe lawmakers have no intention of relinquishing that title -- or the accompanying breadth of jurisdiction -- in 2005.

Exhibit A: The Recycling and Illegal Dumping Act (search) (RIDA), introduced on Jan. 21 by Sen. Dede Feldman (search) and recently passed by the State Senate. This bill makes it a criminal offense to use, store, transport or dump scrap tires or tire-derived products. Should RIDA gain House approval, the bill would create a batch of new misdemeanors and felonies.

Possession of old Firestones, for example, could get you three years in the slammer.

You also might find yourself doing time over a conviction based on guilt by association. Under the bill, knowingly saying nothing about “any substantive information [regarding tire derived products]” is a fourth-degree felony, punishable by up to 18 months in prison.

Unfortunately, RIDA is only one example of overcriminalization at work. Historically, criminal convictions required defendants be found guilty of both criminal intent (mens rea) and a criminal act (actus rea). Activist legislators such as Sen. Feldman aim to diminish -- or eliminate altogether -- the requirement of criminal intent and focus solely on the harmful act.

This break with centuries of legal precedent is dangerous. It jeopardizes the liberty of everyone. Consider: Will average New Mexicans have any reason to suspect that it is a criminal offense to store old tires on their own property?

Criminalizing relatively minor offenses damages the credibility and authority of the rule of law. Civil society prospers when citizens acknowledge the laws that govern them as patently legitimate. When the rule of law becomes nothing more than the whim of power-hungry legislators, civil society suffers.

Eliminating the criminal intent requirement has a further downside. When more and more ordinary (albeit unbecoming) actions are designated as crimes, more and more ordinary people can be classified as criminals. As a result, the stigma of being a “criminal” dissipates, in turn weakening the law’s ability to deter real crime. Overcriminalization is a slippery slope toward oppressive, centralized government power.

Under the vague pretense of protecting public health, safety, or vitality, government can justify criminalizing an unlimited litany of offenses -- and therein lies the problem. As long as government can do something, it will, and so legislators will legislate and prosecutors will prosecute.

Meantime, regulatory agencies and powerful special-interest groups rally behind the simple phrase: “There ought to be a law.” And once a “criminal” act is identified (e.g., storing tires on private property), overcriminalization advocates need only contact a sympathetic lawmaker to translate their agenda into law.

Of course, Sen. Feldman is exceptionally sympathetic. This is the same Bernalillo County Democrat who wants to appropriate $100,000 of taxpayer funds to help parolees buy houses. So she’ll lock you up for your old tires, but when you get out, she’ll make the taxpayers help you buy a house.

The same overcriminalization mindset revealed by Sen. Feldman has affected average citizens in other states. Ask Kay Leibrand. On April 3, 2002, she surrendered to the police. She was fingerprinted. They took her mug shots. The 61-year old grandmother and software engineer was told that she had broken the law. She might go to jail or perhaps she would get off with just a fine. On May 30, 2002, she was arraigned. Her crime: allowing street-side xylosma bushes to grow more than two feet high.

Or ask James Galloway. In May 2003, a six-person jury convicted the 47-year-old Michigan man because he killed a rattlesnake that was threatening some children. But it wasn’t just any snake: It was an Eastern Massasauga rattler, Michigan’s only venomous snake, and state law made it a crime to kill it. “I’m stunned that the snake had more rights than a human being,” Galloway said.

What leads some people to seek criminal penalties for letting your bushes grow too high or protecting children from a poisonous snake? What makes state legislators try to outlaw the possession of old tires? Is it boredom? Crankiness? A simple power grab?

There are many questions, but one thing is certain: When one person says, “There ought to be a law,” someone else near at hand will say, “There ought to be another.”

Paul Rosenzweig is a senior legal research fellow and Steve Muscatello is a researcher in the Center for Legal and Judicial Studies at The Heritage Foundation.

Paul Rosenzweig is a former deputy assistant secretary for policy in the Department of Homeland Security. He is the founder of Red Branch Consulting PLLC (a homeland security consulting company) and a visiting fellow at The Heritage Foundation.