Should a 20 year-old’s possession of cigarettes within any 1.33-square-mile area be a crime? Lawmakers in Grandview Heights, Ohio, thought so until some vocal opponents changed their minds.
One lesson of overcriminalization is that federal, state and local legislators, prosecutors, agency regulators and even judges can contribute to making virtually any conduct a crime.
If lawmakers don’t want pastors feeding homeless people, for example, they can make that a crime. If they want to crack down on certain businesses, they can even resort to other countries’ laws to punish conduct, such as importing certain wood for guitar frets in violation of the laws of Madagascar or packaging lobster in plastic instead of paper in violation of a Honduran regulation.
No one has any reason to know these crimes exist. Thus one of the foremost “Perils of Overcriminalization,” writes Heritage scholar Paul J. Larkin, Jr., is how “the whole notion of consciousness of wrongdoing in the criminal law has been obscured.”
So when any group of lawmakers—federal, state or local—resists an expressed intention to criminalize some conduct, it warrants some attention. Lawmakers and citizens of Grandview Heights, Ohio, recently showed how vocal opposition to a clumsy criminal law can shape it into something better than a costly trap for the unwary.
Grandview Heights is a small suburb of Ohio’s capital on the Scioto River with about 7,000 residents. The City Council recently sought “to increase awareness for the danger of tobacco products and to discourage gateway behavior.”
At first, the council passed an ordinance to criminalize possession and use of tobacco products by persons under 21 years old, even though it is legal for 18- to 21-year-olds to smoke outside city limits. That conduct would have been a misdemeanor punishable by mandatory attendance of smoking-education classes, community service or up to a $100 fine.
Councilman Ed Hastie protested: “You realize we actually made it a crime for a 19-year-old to have a smoke in this city?”
Some councilmen professed that there was no intent to enforce the law. But the “trust us” approach to law enforcement should arouse skepticism if for no other reason than our government is based on the rule of law and not the whim of prosecutors.
The city council ended up with an ordinance that criminalizes the sale of tobacco products to individuals under 21 years old. First-time violators will receive a warning. A second violation is a fourth-degree misdemeanor punishable by 30 days in jail or a $250 fine.
Although there still is one more crime on the books, at least it is directed at merchants engaged in business in the community and requires notice of the criminal offense for a first violation. This ensures that people know the conduct is a crime in Grandview Heights, even if it is legal almost everywhere else (the minimum age to smoke tobacco is 18 in most states and 19 in a few others).
The ordinance does capture the council’s intent without making a criminal out of every young person who wanders through town with a cigarette. And it can be enforced in the same way cashiers check identification for alcohol purchases.
This makes the ordinance better than it might have been, even if, in effect, it requires 18 to 21 year-olds who want to smoke to get only slightly more exercise by leaving Grandview Heights — an area which the U.S. Census reveals is only 1.33 square miles — to buy cigarettes. As one councilman observed, people can just walk across the street if they want to buy cigarettes.
Lawmakers know they can make practically anything they want a crime. Perhaps they should take a page out of the Grandview Heights playbook and resist the urge to criminalize conduct that is not inherently immoral, or, at the very least, should provide fair notice of what the law proscribes.
