“Over-criminalization” describes the trend in America – and particularly in Congress – to use the criminal law to “solve” every problem, punish every mistake, and coerce Americans into conforming their behavior to satisfy social engineering objectives.
Criminal law is supposed to be used to redress only that conduct which society thinks deserving of the greatest punishment and moral sanction - not to force Americans to behave in a way that the government desires.
Every year, additional crimes, increased punishments, and novel applications of the criminal justice system enter U.S. jurisprudence.
Any expansion may appear gradual with another crime here and an enhanced sentence there, and the latest criminal provision or practice may seem trivial in effect.
But, over time, however, the United States has experienced a dramatic enlargement in governmental authority and the breadth of law enforcement prerogatives.
Is it a Police State yet?
Although my first degree was in Criminal Justice, the Administration of Justice, I've worried about America becoming a Police State ever sense returning from overseas back in the 1970s.
Being in the Philippines in the 1970s was interesting because the government had declared Martial Law. The government soldiers had orders to shoot first and ask questions later. The government soldiers were no one to toy with.
Life in the Philippines under President Marcos was such that the military had a great deal of authority and life was cheap. It was a Police State.
While in the Philippines, I witnessed two incidents that demonstrated to me the power and a Police State. The first came one night when I witnessed a woman shot in the head simply because she didn't answer their questions correctly.
It was after the curfew and she was being beaten during the officer's questioning her. I watched it all take place from an upstairs room in one of the bars in Olongopo.
When she was half-way unconscious from the beating, an officer pulled his pistol and simple shot her in the head. They picked her up and threw her body in the back of a deuce-and-half truck and drove off. I think about that often.
The second incident took place after a few friends and I decided to leave the base at Subic Bay and take a trip to a place called Pagsanjan Falls. They left before me because I got off duty a little later than I had expected.
I told them that I'd meet them there. Like them, I took the Liberty Bus.
Some of the local people on the bus had chickens, a few others had piglets, there were one or two dogs, and everyone was crowded and sweaty from the humidity. The bus itself had to be 30 years old and the driver didn't stop for people crossing or much else.
Up ahead was a road-block and soldiers there, we were all ordered off the bus. I immediately produced my U.S. military identification card. I was made to kneel with a few others, our hands atop our heads.
One soldier behind me placed the barrel of his rifle in the back of my head and kept pushing my head forward. Another pulled his pistol and held it on us from the front. I really thought the guy behind me was going to shoot me.
A Filipino man on the end was taken away into the bushes by two soldiers, there was a bunch of loud talking in tagalog, then there was shot and the soldiers came back out without him. Then before being released, the soldiers robbed us of whatever money we had on us.
Since I had very little money on me in my shoes, I simply returned to Subic Bay and shut up about what took place.
Thinking about it now, so many years later, I can honestly say that for a moment there I truly thought those soldiers would kill me and leave my body on the side of the road or in the bush.
They abused their power because it was given to them to abuse. They used fear and intimidation to keep the people there in line. And yes, it worked very well.
Fear and intimidation from the Federal Government?
You bet that's the case!
Over the past century, the Federal government has slowly but surely secured a general police power to enact virtually any crime. And yes, I believe that we are slowly becoming a Police State.
Maybe not with curfews right now, but with police powers that go against our Constitution and way of life.
If not, than why does Homeland Security find it needs to buy 2,717 MRAP tanks, 7000 M-16 rifles for their officer's personal use, and 1.6 billion rounds of ammunition which is enough ammo to fight an Iraq style war for 20 years?
If not, than why all the laws? Why the permission to stop and search someone without just cause?
And yes, there is another thing, why has the Federal government adopted repetitive and overlapping statutes, extended criminal liability to behavior that is already well-covered by state laws and local enforcement?
Why create new, mostly superfluous, offenses like say "carjacking" that deal with conduct addressed by existing provisions such as robbery and kidnapping on the state level?
Why make everything a Federal matter?
As a result of rampant overcriminalization, trivial conduct is now often punished as serious crimes.
Many criminal laws make it possible for the government to convict a person even if that person has acted without criminal intent. Because of this, sentences have skyrocketed - particularly at the federal level.
So how is it done? Simple, regulate and criminalize all behavior.
You see, besides new State laws every year, the United States Congress creates on average 55 new crimes every year. That means, a total number of more than 5,000 federal crimes are on the books right now.
That's right, more than 5,000 new laws.
Though you would think it's easy to find out about these laws, it's not. The United States Code, Title 18, Crimes and Criminal Procedure, is not always where you have to go to find out what laws you have broken today.
And there's the problem! Though Title 18, Crimes and Criminal Procedure should furnish us with what is considered a federal crime, the problem is not all of the estimated 5,000 federal crimes are listed in the code.
Fact is that there are about 50 volumes that cover all the different federal agencies that have the jurisdiction to enforce and interpret rules and regulations, criminal acts if not followed.
Now we're looking at somewhere in the neighborhood of 300,000 to 400,000 regulatory rules that could be considered a federal offense if broken or simply not adhered to.
Authority often leads to problems. And yes, the Federal Government has all of the authority.
One writer put it this way, "Once you have law enforcement people on staff, and you have these laws that are very broad, you almost consider yourself to have a mandate to go and find crime, even if no one's really seen it before then."
That mentality has led to more and more people getting entangled in the law.
America, by far, leads the world by far in putting people in prison. The United States has 760 prisoners per 100,000 people. Compare that number to Britain with 153, Germany with 90 and Japan with 63 and it becomes evident the U.S. is truly becoming a nation of criminals.
One reason why is the explosion in the number of federal laws and regulations.
Whether they're crimes concerning drugs, immigration, or fraud, the rising convictions continue to put more people into already overcrowded prisons.
And yes, a growing number of Washington's laws are written so you are guilty even if you didn't intend to commit a crime. So if you accidentally wander into the wrong federal land, you could be prosecuted and be fined, lost your home, go to prison, or all three combined.
Federal laws cover almost every aspect of life - from banking, hospitals, the Internet, your money, drugs, taxes, travel, the environment, endangered species - and so on and so on.
Critics argue there are so many new laws, rules, and regulations that it's all too easy to violate one of these laws and never know you did it.
What happened to George Norris could happen to any of us.
Take, for example, Texas retiree George Norris and his wife, Kathy: federal agents raided and ransacked their Texas home in 2003.
Originally, the indictment against them was sealed, so they weren't even told why they were targeted at first.
Facing astronomical legal fees and a formidable foe in the federal government, George decided his only option was to plead guilty.
"As old as I was, I didn't need to go through anything like that. I'd have gladly paid them a $50,000 fine, if that's what they wanted," he said.
Instead, George wound up serving nearly two years in federal prison alongside killers, rapists, and other hardened criminals.
What was his crime? It was a paperwork violation related to flowers in his backyard nursery: buying, importing, and selling perfectly legal orchids.
Believe it or not, the fact is that George Norris was charged with an improper paperwork violation but only after the government tried, and failed, to charge him for importing and selling what they thought were endangered orchids.
The Norris' spent their life savings, watched their health decline, and George is now the first person in his family to have a criminal record.
"If you want me to cry, it won't be for me and George, it will be for the country cause I sit down now and still do it. The country I grew up in no longer exists," Kathy Norris lamented.
Meanwhile, it is believed that the only way to reverse the tide is by raising public awareness. And yes, maybe electing a Congress that will do something about what is going on.
Because of Federal regulations, which are increasingly being enforced with criminal, not administrative, penalties, it is almost certain that you will be a criminal soon.
In such a society, we are all petty criminals, guilty of violating some minor law.
In fact, Boston lawyer Harvey Silvergate, author of Three Felonies a Day: How the Feds Target the Innocent, estimates that the average American now unknowingly commits three felonies a day, thanks to an overabundance of vague laws that render otherwise innocent activity illegal and an inclination on the part of prosecutors to reject the idea that there can’t be a crime without criminal intent.
Consequently, we now find ourselves operating in a strange new world where small farmers who dare to make unpasteurized goat cheese and share it with members of their community are finding their farms raided, while home gardeners face jail time for daring to cultivate their own varieties of orchids without having completed sufficient paperwork.
This is all worse than Communist Russia ever was!
This frightening state of affairs - where a person can actually be arrested and incarcerated for the most innocent and senseless activities, including something as silly as collecting rainwater on your own property - which is really taking place in an Oregon court right now - is due to what law scholars refer to as overcriminalization, or the overt proliferation of criminal laws.
“Such laws,” notes journalist George Will, “which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes.”
I agree with George Will and others who say that this trend of making America a nation of felons is ripe for abuse and power hungry individuals who see nothing wrong with applying fear and intimidation against the American people.
As I see it, though I believe it must be stopped, I don't know if we the people are in charge anymore to stop it. I really believe the government answers to no one. And yes, there lies the problem.
When there comes a time when the government sees itself as so powerful that it is unstoppable by the people, that it feels it does not have to answer to the people, we are in serious trouble.
That time is now.
Story by Tom Correa