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Haupt’s Take: Overcriminalizing is costing dollars and common sense

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UNDER ARREST: There are more criminal laws on the books than ever before. Do you know if you’ve committed a crime without realizing?

By William Haupt III | Haupt’s Take

“Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.” ~Plato

Most states’ prison populations are at historic highs. It has more than tripled in most of them since 1978.  This unprecedented growth has continued despite felonious crimes declining since the 1990s. Penal spending is our third largest budget expense: o states are spending over $50 mil more than they did in 1980.

This incarceration-obsession robs their scant budgets of productive investments, including money for education, and costs the tax payers billions each year! This presents us with an equivocal ultimatum. Do we have too many laws or just too many bad ones?  As I recall, Mark Twain once told us, “Laws control the lesser man?” And “Right conduct controls the greater.”

Justice is harsher for the wrong reasons in America than in any other world democracy. One out of every 100 adults is incarcerated in the U.S. And that does not count the one out of every 30 on parole or probation under “correctional” supervision. Compared to other free countries, America incarcerates five times more people than Britain, nine times more than Germany and 10 times more than Japan.

Federal prisons house over 60 percent more inmates than they were designed for, and state jails are bursting like a fat lady in a tight girdle. The problem is the wrong people are in prison for all of the wrong reasons and the ones that should be there are out in the streets:

“The more laws and order are made prominent, the more thieves and robbers there will be.” ~Lao Tzu

Our criminal justice system has served us well for many years. But as more controvertible laws are passed in reaction to petty grievances, we have developed enumerable flaws in jurisprudence. The biggest gremlin in this equation is we put too many people away for too long for the wrong reasons.

This is the case of judicial injustice today. It criminalizes un-criminalized acts. Many new laws are so vaguely written that people cannot tell whether they have broken them or are they being singled out for political disobedience. And much of this is overreaction by voters who are alarmed with a surge in pretty crimes demanding vigilant justice for all offenders.

“As a citizen, you need to know how to be a part of the system and process, and it is not just by voting.” ~Sandra Day O’Connor

Politicians are easy targets for mad voters who demand punishment for stupid crimes. And they are eager to oblige because the more people they punish the better they look when it is time to start campaigning. And many new laws have removed judges from their ability to use common sense in discretionary sentencing that critiques the degree and intent of the offence.

Since none want to be tarred and feathered for being a wimp when it comes to punishing unsocial offenders, mandating harsh sentences has become the weapon of choice. Although there are many criminals who belong behind bars for life, when petty drug-dealers are jailed for years, crime bosses quickly fill their vacancies.

“Injustice anywhere is a threat to justice everywhere.” ~Martin Luther King Jr.

If our prisons were filled with scary thugs, all of this incarceration would be justified. But sentencing laws that shift power from judges to prosecutors are stupid laws with unintended consequences. Over half of American cancer patients receive painkillers and other C-4 drugs. And many are left suffering because doctors are scared of losing licensing privileges. If they are caught giving out just a little too much mediation, they are accused of drug-trafficking.

Doctors can be locked up for as long as 25 years for making a decision that is best for the patient but are violating of a law written by a chief of police who is friends with a local politician. In some states the laws are so severe even the most considerate doctors refuse to write C-4 prescriptions for more than 30 days. Yet federal law authorizes writing them for 90 days. These laws were supposed to control drug trafficking not “hurt patients who are hurting.”

“Mistrust all in whom the impulse to punish is powerful.” ~F. Nietzsche

America is conducting an experiment of imprisoning first-time non-violent offenders for periods of time previously reserved only for killers and terrorists. Many Americans assume that white-collar criminals get off lightly, but most do not. Yes, they may be hard to catch and often have a good mouthpiece, but federal prosecutors can file many charges for the same offence.

For example, they can count each e-mail sent by one criminal as a separate case of wire fraud and each one violation carries a maximum sentence of 20 years. As the decades add up so do the tax dollars to house them and pay for them to make license plates instead of putting them into public works programs. Remember when we were told,

“Let the punishment fit the crime?” ~W.S. Gilbert

Badly drafted laws create traps for the unwary. Our prisons are over-crowed with so many non- violent criminals, it is difficult to imprison all of the real bad actors. Innocent defendants may plead guilty in return for a shorter sentence to avoid the risk of a much longer one. A prosecutor can credibly threaten a defendant that he will die in a cell unless he gives evidence against a person who violated a questionably dubious law.

If a defense lawyer offers witness money to testify that his client is innocent, that is bribery. But a prosecutor can offer something of greater value: his freedom. These wrongful convictions cost taxpayers big bucks to house these many apocryphal convicts. It used to be that,

“Punishment is justice for the unjust.” ~St. Augustine

There are over 4,000 federal crimes, and most carry criminal penalties. The new rules concerning corporate governance or the environment are impossible to understand. Yet breaking them can land you in prison. In many cases, the common-law requirement that a defendant must have a mens rea (knowledge of doing wrong) has been completely eradicated from law books.

Now, failing to prevent your employees from breaking regulations you have never heard of can be a crime, and you can be sent to jail for a decade. And those that only imprison people for a few years still over-crowd our jails house yards and cost tax dollars:

“Common sense in now uncommon.” ~J.J. Good

American justice today is: “how to punish everyone for the few who break the laws.” Not allowing doctors to prescribe drugs, makes criminals of them and their patients. Buying more than one pack of Sudafed a week will put you on a “watch list”. Trashing junk mail delivered to the wrong house is now a federal offense. Office pools and Friday night poker games can land you in jail. A Sharpie in hand is now considered a graffiti tool in a public place.

The EPA now holds you liable for water that runs off your roof and fines you if you use the wrong kind of cow manure on your flowers. Now it’s illegal to sell homemade muffins or put up a Kool-Aid stand. It’s also criminal to drive with a trailer hitch on your car or own more than four cats. It’s verboten to fish for whales on shoot a killer coyote on Sundays. Do we need more laws?

“Common sense is not so common any longer.” ~Voltaire

Milton Friedman said, “One of the great mistakes is to judge policies and programs by their intent rather than their results.” Creating new laws, and modifying bad ones, is now commonplace.

In our new bureaucracy, those devoted to big government must maintain control to insure their goals are accomplished. To do this they must restrict as much liberty as they can to control those who they consider a critical threat. The U.S. is becoming a nation of bad laws, poorly written and overly enforced by bad politicians.

“There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.” ~John Adams


William Haupt III is a retired professional journalist, citizen legislator in California for 40 plus years, and author. He got his start working to approve prop 13.