June 24, 2005
By Mike Krause, Chelsea Johnson
If you consider yourself a “law-abiding” citizen, here is a question: How do you know?
Over the last century, not only has there been a vast increase in the number of new lawsboth state and federal, but the definition of a criminal act has drastically changed.
The result is that the citizen going about his or her business cannot reasonably know what is, and what is not, against the law.
In the book “Drug War Addiction,” San Miguel County, Colorado Sheriff Bill Masters describes his discovery of the Colorado Statutes of 1908, “All of the laws of the state fit into one volume. Murder, rape, assault, stealing, and trespassing were all against the law in 1908.”
Today, Colorado has over 30,000 laws, with new laws passed every year. Some are not just unnecessary, but downright silly. According to the Colorado Statutes, it is illegal to sell a mattress without a tag that is at least 2 inches by 3 inches.
This drastic increase in the quantity of laws has failed to put an end to the crimes from 1908. Indeed, as Sheriff Masters puts it, today, “lawlessness is commonplace, even in vogue.”
Having lawlessness “in vogue” is a logical outcome of over criminalization.
In the Cato Institute book Go Directly to Jail: The Criminalization of Almost Everything author James V. DeLong writes, “When the government criminalizes almost everything, it also trivializes the very concept of criminality.” As described in Go Directly to Jail, there are now over 4,000 federal crimes filling some 27,000 pages of the U.S. Code, including violations of the regulations expressed in the tens of thousands of pages of the Code of Federal Regulations.
In other words, while you are trying to comply with state law, you may well be breaking a federal law. Many laws and regulations are so complicated that only legal scholars understand them. The sheer number of laws means that people often have no idea they are in violation of any of the laws.
At its inception, criminal law required both actus reusthe guilty actand mens reaa guilty mind, or intent. The fundamental nature of a crime also required conduct recognized by society to be inherently wrongfulmalum in seand, in some sense, immoral.
But criminal law has been widely expanded into conduct that is illegal, not because of its intrinsic nature, but because it is a prohibited wrongmalum prohibitum-, creating so called “public welfare” laws. These crimes are created by legislative declaration in pursuit of some perceived public good and they cover an array of behavior from drug offenses to environmental violations.
Legislators have become far too comfortable with public welfare lawmaking. 2005 found the Colorado Legislature debating statewide smoking bans, primary seat belt laws, and the mandating of time off for private sector employees to attend their children’s school activities.
Are some behaviors the state’s business in the first place? In stead of looking to the free market or to a private cause of action (bringing a civil suit), the private sector has given way to the police powers of the state as the answer to most problems, real or perceived.
In 1985, the Colorado Legislature doubled the maximum penalties for felony crimes, and Colorado’s prison population quickly doubled within five years. Punishing felons is perfectly fine, but what constitutes a felony has also changed.
University of Tennessee Law Professor Glenn Reynolds, writing for Tech Central Station, notes that felonies used to be a fairly rare class of crime, “Where once ‘felony’ meant things like murder, rape, or armed robbery, now it includes things like music piracy, or filling in potholes that turn out to be ‘wetlands.'”
In April, police arrested more than 20 consenting adults in a Palmer Lake, Colorado restaurant on misdemeanor gambling charges for playing small stakes poker. But the restaurant owner, Jeff Hulsman, faces the felony charge of allegedly running an illegal gambling operation.
The investigating officer told the Colorado Springs Gazette that it was a complex case because, “We were uncertain whether it was legal or not.” You would think a crime for which a person can be ruined for life would be clearly defined and obvious to those who enforce the law.
As Professor Reynolds continues, “if you haven’t been convicted of some felony or other, it’s probably because no prosecutor has tried to put you away, not because you haven’t committed one, whether you realized it at the time or not.”
A criminal code that regulates nearly everything gives enormous discretionary power to government to pick targets it thinks are appropriate, rather than to go after those offenses that indeed must to be prosecuted.
And the biggest loser here, is the rule of law itself.