A Threat to Personal Liberty – And How States Can Respond
There are 1,700 statutory offenses in Texas state law, including 11 felonies relating to harvesting oysters. It’s now almost status quo for criminal law to be used to regulate ordinary business activities, an example of our ever-growing government.
The most prominent recent example of this was the raid of Gibson Guitar by the Environmental Protection Agency’s own police force. The actions taken by the EPA could turn iconic American job creators into jailbirds based on federal laws concerning importing wood that should have never been made felonies punishable by prison time.
At the ALEC December 2011 conference, the Public Safety & Elections Task Force unanimously approved a resolution I introduced, entitled the “Resolution on Transparency and Accountability in Criminal Law,” this measure includes three provisions:
- The state shall require that all legislation creating or enhancing a criminal penalty so indicate in its caption. This ensures legislators will be aware that a bill contains one or more criminal provisions before voting on it. The need for such transparency was illustrated by the convoluted 2,000 page Dodd-Frank legislation that imposed criminal penalties that were largely obscured by the sheer size of the bill.
- All legislation creating or enhancing a criminal penalty shall be accompanied by a comprehensive fiscal note that sets forth the estimated costs to both the public and private sectors, including corrections, courts, prosecutorial expenses, public defenders and appointed counsel for indigent defendants, law enforcement, compliance costs for businesses, and other costs. Too often, state fiscal notes on criminal justice legislation only include prison costs, often ignoring other costs, particularly those borne by counties for jails, judges, prosecutors, and indigent defense.
- The state shall not enact statutes that provide agencies with the power to criminalize violations of their rules unless the conduct involved is expressly prohibited by a legislatively enacted statute and that any existing catch-all statutes that purport to delegate criminal lawmaking to agencies be repealed or revised accordingly. This provision is needed because federal and state agencies have created thousands of regulatory crimes based on purported implicit authority provided by catch-all statutory provisions allowing agencies to impose criminal penalties for violations of their rules. This applies to conduct that has never been expressly criminalized by a statute duly enacted by the appropriate legislative body. This makes it difficult if not impossible for individuals and businesses to keep track of the ever-growing body of criminal law. Moreover, the gravity of criminal law demands that those democratically elected policymakers who are directly accountable to the public determine what constitutes criminal conduct and that this power not be delegated to unaccountable bureaucrats.
While this resolution is an important first step, additional ALEC efforts are needed to address overcriminalization, which is a cradle to grave phenomenon. The overcriminalization of youth is another area. In Texas, students as young as 10 years old had been ticketed for chewing gum in class, until House Corrections Chairman and ALEC leader Jerry Madden recently passed legislation repealing a state law that allowed school districts to create their own criminal offenses by designating violations of their code of conduct as criminal offenses, even though they did not involve activity criminalized by the state or local governments.
Moreover, municipal court judges in Texas have said the hundreds of thousands of tickets issued by schools for misbehavior every year crowds their dockets and they express frustration that their only option is often to fine the parent months after the misbehavior, which has little impact on most youngsters.
Overcriminalization is widespread. Many states are taking a hard look at their corrections systems and determining how to improve efficiency, reduce costs and protect communities. In addition, states should look at who in their community could fall victim to an overzealous law (like harvesting oysters). Simple protections like those included in the ALEC Resolution are a great step in the right direction.
 Marc Levin and Jeanette Moll, “Comprehensive Juvenile Justice Reform: Cutting Costs, Saving Lives,” Texas Public Policy Foundation (Sept. 2011).
 Christopher Lowenkamp and Edward J. Latessa, “Evaluation of Ohio’s RECLAIM Funded Programs, Community Correctional Facilities, and DYS Facilities: Cost-Benefit Analysis Supplemental Report,” University of Cincinnati
Division of Criminal Justice Center for Criminal Justice Research (Nov. 2005).