By Charles Hugh Smith
Source: Of Two Minds
The over-criminalization of America has undermined justice, the rule of law and legal egalitarianism.
While the corporate media devotes itself to sports, entertainment, dining out and the latest political kerfuffle, America has become the Over-Criminalization Capital of the World. The proliferation of laws and administrative regulations, federal, state and local, that carry criminal penalties has swollen into the tens of thousands.
The number of incarcerated Americans exceeds 2.3 million, with the majority being non-violent offenders–often for War on Drugs offenses.
Holly Harris has written an important summary of this profoundly destabilizing trend: The Prisoner Dilemma: Ending America’s Incarceration Epidemic (Foreign Affairs, registration required).
The over-criminalization of America is a relatively recent trend. As Harris notes:
It wasn’t always like this. In 1972, for every 100,000 U.S. residents, 161 were incarcerated. By 2015, that rate had more than quadrupled, with nearly 670 out of every 100,000 Americans behind bars.
The over-criminalization of America is rooted in federal laws and regulations, and state and local governments have followed suite. here is Harris’s account:
The burgeoning U.S. prison population reflects a federal criminal code that has spiraled out of control. No one—not even the government itself—has ever been able to specify with any certainty the precise number of federal crimes defined by the 54 sections contained in the 27,000 or so pages of the U.S. Code. In the 1980s, lawyers at the Department of Justice attempted to tabulate the figure “for the express purpose of exposing the idiocy” of the criminal code, as one of them later put it. The best they were able to come up with was an educated guess of 3,000 crimes. Today, the conservative Heritage Foundation estimates that federal laws currently enumerate nearly 5,000 crimes, a number that grows every year.
Overcriminalization extends beyond the law books, partly because regulations are often backed by criminal penalties. That is the case for rules that govern matters as trivial as the sale of grated cheese, the precise composition of chicken Kiev dishes, and the washing of cars at the headquarters of the National Institutes of Health. State laws add tens of thousands more such crimes. Taken together, they push the total number of criminally punishable offenses in the United States into the hundreds of thousands. The long arm of the law reaches into nearly every aspect of American life. The legal scholar Harvey Silverglate has concluded that the typical American commits at least three federal felonies a day, simply by going through his or her normal routine.
Federal policies reward states for building prisons and mandating harsher sentences:
…federal incentives for states that safely decrease their prison populations and reconsider ineffective sentencing regimes…would represent a stark reversal of legislation signed into law by President Bill Clinton in 1994, which did just the opposite, offering federal dollars to states that imposed harsher criminal penalties and built more prisons, which contributed to the explosion of incarceration rates during the past two decades.
How did we become a Gulag Nation of tens of thousands of laws and regulations and mandatory harsh sentences for non-violent crimes–a society imprisoned for administrative crimes that aren’t even tried in our judiciary system? I would suggest two primary sources:
1. The relentless expansion of central-state power over every aspect of life. As I describe in my book Resistance, Revolution, Liberation: A Model for Positive Change, the state has only one ontological imperative: to expand its power and control. There are no equivalent mechanisms for reducing the legal/regulatory burdens imposed by the state; various reforms aimed at reducing the quantity of laws and regulations have not even made a dent in the over-criminalization of America.
The second dynamic is the political reality that the easiest way for politicos to be seen as “doing something” is to pass more laws and regulations criminalizing an additional aspect of life. The state and its elites justify the state’s relentless expansion of power and control by claiming problems can only be solved by centralizing power further and increasing the number and severity of penalties.
Criminalization is the ultimate expansion of the state’s monopoly on coercive violence. As the state expands its power to imprison or punish its citizens for an ever-wider range of often petty infractions, increasingly via a bureaucratic administrative process that strips the citizens of due process, another pernicious dynamic emerges: the informal application and enforcement of formal laws and regulations.
In other words, the laws and regulations are enforced at the discretion of the state’s officials. This is the systemic source of driving while black: a defective tail-light gets an African-American driver pulled over, while drivers of other ethnic origin get a pass.
This is also the source of America’s systemic blind eye on white-collar crimes while the War on Drugs mandates harsh sentences with a cruel vengeance. When there are so many laws and regulations to choose from, government officials have immense discretion over which laws and regulations to enforce.
Prosecutors seeking to increase their body count will use harsh drug laws to force innocents to accept plea bargains, while federal prosecutors don’t even pursue white-collar corporate fraud on a vast scale.
The over-criminalization of America has undermined justice, the rule of law and the bedrock notion that everyone is equal under the law, i.e. legal egalitarianism.
The over-criminalization of America breeds corruption as the wealthy and powerful evade the crushing burden of over-regulation by either buying political favors in our pay-to-play “democracy” (money votes, money wins) or by hiring teams of attorneys, CPAs, etc. to seek loopholes or construct a courtroom defense.
Meanwhile, the peasantry are offered a harsh plea bargain.
The over-criminalization of America is one core reason why the status quo has failed and cannot be reformed. That is the title of one of my short works, Why Our Status Quo Failed and Is Beyond Reform, which explains why the ceaseless expansion of centralized power leads to failure and collapse.