Enough is enough when it comes to overcriminalization. That is the message expressed in California Gov. Jerry Brown’s recent letter to the California legislature. In it, he refused to sign nine bills that “multiply and particularize” existing crimes. More than that, he rebuked the practice of overcriminalization.
His directive to the legislature was simple: no more criminal laws until it is understood how existing law can be “more human, more just and more cost-effective.”
The Heritage Foundation has published guidance on how criminal laws can promote those ends, according to a set of simple principles.
Criminal laws should target morally blameworthy conduct. They should be constitutional, and more beneficial than costly. Each law must have a criminal-intent requirement that adequately protects the innocent, and ensures that criminal punishment is imposed only for conduct the accused person knew was wrong or unlawful. Last, each law should punish to serve the ends of justice, without undue collateral consequence or deprivation of liberties.
As Brown wrote, much of the conduct covered in the nine rejected bills was already criminal under existing law. For example, Assembly Bill 144 multiplied and particularized existing firearm offenses. This makes the bills not only unnecessary, but potentially harmful to people in California who would not know the duplicative laws exist. They could, however, be pressured into plea bargaining under the weight of duplicative charges.
Brown’s reckoning of the “5,000 separate provisions” in California’s criminal code, “covering almost every conceivable form of human misbehavior,” comes just after the Michigan legislature’s progress against overcriminalization.
Some of the highest officials in the federal government support this stand against the abuse or misuse of criminal law. In her dissenting opinion in Yates v. United States, Justice Kagan identified “overcriminalization and excessive punishment” as a “pathology” in criminal lawmaking. President Obama has called attention to criminal justice problems. And sentencing reform has advanced in Congress.
People in all branches and levels of government seem to be trading tough-on-crime frenzy for more just and fair smart-on-crime positions. Criminal justice reform is underway.
Now, the question is: what’s next?