Imagine a typical day in your life: You roll out of bed (after pressing “snooze” one too many times) and hurriedly get dressed, grab something to eat and rush to work. Then, you spend eight or nine hours earning an honest living, and fight the 5 o’clock traffic to get back home in time to wolf down dinner, perhaps work out or watch TV (depending on your preferences), and get to sleep in time to do it all over again the next day. Or maybe you’re lucky enough to have won the lottery-and you do absolutely NOTHING all day.
But lost in the shuffle of our everyday lives is this astounding fact: It is estimated that the average American unwittingly breaks at least 3 criminal laws every day, and is left to the mercy of the authorities. That may sound unbelievable, but here are some particularly galling examples from across the web:
George Norris, a small businessman in Texas, was federally indicted under the “Convention on International Trade in Endangered Species” for purchasing orchids from overseas after armed federal agents stormed his home. Due to Norris’s incorrect usage of the paperwork required for orchid importation (!), federal prosecutors accused him of “smuggling” orchids and described him as the “kingpin of an international smuggling ring”, even though his annual income from selling orchids amounted to only $20,000 per year. Hardly the next Walter White. He was also charged with the vague crimes of “making a false statement to a government official” and “conspiracy”, charges which carry sentence enhancements of five years apiece. In the face of these mounting charges, Norris eventually pled guilty and spent 17 months in jail rather than spend his life savings on a legal defense team.
Another example of overzealous prosecution was highlighted here on RedState last October when the Marion County, Iowa district attorney’s office threatened to brand a 14-year-old girl as a sex offender after she texted a photograph of herself in a sports bra and shorts to a boy at her school. The boys (being 14 years old, immature, and quite cunning) decided to print out the image on a school computer and were subsequently discovered, which touched off a widespread police investigation. Apparently no one stopped to think that maybe a phone call to the parents could solve the problem.
Even connecting to unsecured Wi-Fi could be considered a crime given the vague language in the federal Computer Fraud and Abuse Act, which states that “accessing information” “without authorization” is an offense. Many states have similar laws, as these individuals who have been found guilty of using café Wi-Fi from a parking lot can attest.
While seemingly ridiculous, these kinds of incidents are the natural result of a federal code that is tens of thousands of pages long (and has most likely never been read in its entirety), this not even to mention a hodgepodge of state, city, county, and agency regulations.
If there are so many laws that the general population can’t possibly follow all of them, and they are so complicated (or vague) that it takes a team of lawyers to understand, what good is having laws in the first place?
Regulations and laws that defy common sense or are difficult to understand only serve to discourage innovation and undermine trust in government.
Good government should be focused on promoting as much individual freedom as possible within a framework of simple, common-sense laws that allow prosecutions only of those who are impinging on other people’s rights.
In other words, from a philosophical perspective, there are two types of laws: laws designed to prevent actions that are intrinsically wrong (“mala en se”) i.e. they violate other people’s rights, and laws that prevent an action that is “bad” only because it has been prohibited by law (“mala prohibita”).
Unfortunately, all too often our legal system makes no distinction between the two types of actions-as seen in the first example above, even actions that are not inherently “bad” and at the most warrant a fine or reprimand can result in years of jail time or at the very least large expenses and the stigma of a trial as a person tries to clear his name.
This is not just a white-collar problem: in fact, overcriminalization disproportionately affects poorer people who cannot afford attorneys.
So now that all these laws are on the books, what can be done about the problem? There are several avenues that can be pursued.
A quick fix would be for prosecuting attorneys to use common sense in applying the ever-growing mountain of laws. For better or for worse, prosecutors (especially those who have aspirations for higher office) tend to err on the side of being overzealous. Fear of media scrutiny that comes when someone could have been prosecuted but was not can drive prosecutors to unnecessarily aggressive action in these situations. Also, situations like these are often easy wins that can drive up an office’s conviction rate-even in a situation where everyone can see that the law is stupid, jury nullification (where a jury votes to acquit despite the text of the law directing them to convict) is still quite rare.
We should demand that our prosecutors not only convict people who attempt to harm others, but also protect innocent blunderers from the wrath of the federal leviathan. Courts should take a very harsh view of overzealous prosecutions that are not based on narrow interpretations of relevant statutes.
Another safeguard that should be utilized more often is a “mens rea” requirement-in other words, most laws (particularly those criminalizing harmless activities like importing orchids and piggybacking off free wifi) should be written or rewritten such that the government must prove in court that a person knew what he was doing was illegal and thus intended to commit a crime.
This would take the burden off prosecutors to decide what is accidental and what is criminal (and the burden off juries to nullify statutes) and instead create a clear legal delineation between the average American who is unaware he is breaking a law and the criminal who intentionally breaks the law.
Beyond that, the next step is to limit the potential unknown bad effects of laws. This can be done through sunset provisions, a method by which a law expires at the end of a certain period of time if it is not renewed. Essentially, this places the burden on the law’s proponents to continually expend political capital to prove its usefulness, as opposed to the burden being on its opponents to root it out (as we are seeing with Obamacare, removing even a fairly unpopular law with many negative effects is a very difficult thing politically).
Another helpful step would be a “regulation budget”, a system in which for each new law or regulation an old law or regulation must be removed from the books. While a bit arbitrary in nature, as with sunset provisions this is designed to rein in the natural tendency of government to grow and is a good first step towards eliminating the most capricious laws and regulations.
Further, the legislative branch should stop delegating its lawmaking authority to unelected bureaucrats in executive agencies. Not to mention the constitutional problem such an arrangement poses, too many regulations is the natural result when technocrats who are unanswerable to voters are given a broad scope to regulate their particular area of interest.
Congress should be in the business of making laws, and executive agencies should be in the business of enforcing them-as of now too many federal agencies (for example the IRS and EPA) have been given the power to both make and enforce law through the “rulemaking” process.
And finally, the biggest mountain to climb at the federal level would be a comprehensive review of all laws and regulations to eliminate unnecessary items and reconcile conflicting, vague, or overlapping items. This would likely take years, spanning several congressional terms, but there should be wide bipartisan agreement that thinning out the federal code, while not glamorous, is one of the most productive things lawmakers could do at the moment.
This would also have the positive side effect of allowing Congress to regain some of the constitutional authority it has forfeited to the courts and executive agencies in recent years.
And finally, as far as the federal government goes, it should leave as much lawmaking as possible to the individual states, where the process is closer to the people and thus potentially more transparent, resulting in greater accountability.
This accountability is key because ultimately, the onus is on us as voters to demand that these simple reforms are made to “decriminalize” the average American. As Republicans and Democrats alike, we must realize that politicians respond to political pressure: if we want these changes to be made we will need to make our voices heard at the ballot box, whether it be in local elections for prosecutors and judges, elections for state officials, and in our federal elections.
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