As politicians, lawyers, and policy wonks prepare for transition at both the federal and state levels, new administrations are already setting their agendas for their upcoming terms. One problem that leaders on both sides of the aisle would be well-served to address is overcriminalization.
Overcriminalization is the misuse of criminal law to punish seemingly every mistake in society—even those mistakes that are committed without any criminal intent. Overcriminalization forces citizens to comply with vast and often incomprehensible regulatory schemes by punishing noncompliance with criminal penalties.
One particular danger of overcriminalization is that it can permanently brand morally blameless individuals as criminals. This triggers a multitude of collateral consequences, which can pose significant barriers to employment, housing, and economic opportunity later in life.
Administrations have an opportunity to demonstrate leadership on this issue by making the elimination of overcriminalization a top priority. To achieve this, policymakers must learn to avoid common pitfalls that have all too often contributed to overcriminalization in recent years.
Here are six pitfalls to avoid.
1. Punishing Morally Blameless Activities
An Alaskan scientist, Krister Evertson, shipped extra sodium from an experiment via ground delivery. Evertson was unaware that federal regulations required packaged sodium from Alaska to be shipped by air, not “ground delivery.”
Evertson was prosecuted and the jury acquitted him of this misstep. But during the trial, the Environmental Protection Agency learned of additional sodium that Evertson had stored at a warehouse.
The Department of Justice then brought new charges against Evertson for abandoning that sodium in the warehouse. Evertson was convicted and served 13 months in federal prison before being released to a halfway house. All for an honest mistake.
2. Seeking Excessive Criminal Penalties
Bobby Unser went off trail on a snowmobile when he was caught in a life-threatening blizzard. Weeks later, Unser sought to retrieve his snowmobile with the “help” of the U.S. Forest Service.
After learning where Unser had ditched his snowmobile to find shelter from the blizzard, the Forest Service persuaded prosecutors to bring charges against Unser for violating the Wilderness Act of 1964. That statute prohibits vehicles from being driven in certain federally protected areas.
The Forest Service sought to impose the maximum penalty allowed by statute, which included six months’ imprisonment for the violation. Unser was convicted of the technical violation, but did not have to serve jail time.
3. Relying on Vague and Overly Broad Laws
A renowned marine biologist and whale-watching tour operator, Nancy Black, reprimanded a captain for whistling at a humpback whale and a crew member for encouraging passengers to do the same in order to keep the whale nearby during a tour.
When the National Oceanic and Atmospheric Administration launched an investigation into the captain’s potential harassment of a whale—a federal offense—Black voluntarily provided a videotape of the whistling incident to an investigator.
However, Black did not tell the investigator that the tape was edited to cut what she believed to be extraneous footage. The provided footage included the captain whistling, but omitted the crew member’s actions.
While no action was taken against her captain or crew member, Black was charged with two felony counts for providing an edited video that could have impeded an investigation because she did not disclose the fact that the footage was edited to the investigator.
In unrelated events, Black twice encountered a pod of orcas feeding on a dead gray whale. Black had her crew remove and return a piece of whale blubber in the water, so that she could attach the blubber to her research boat and film the activity.
In addition to two felony charges stemming from the video, Black faced misdemeanor violations of the Marine Mammal Protection Act for allegedly “feeding” killer whales.
Ultimately, Black pleaded guilty to a single misdemeanor count for feeding the whales in return for the dismissal of the felony charges that would have destroyed her business and sent her to federal prison for up to 27 years if convicted.
Jeff Olson used washable chalk to write protest messages on the sidewalk in San Diego.
After the city attorney deemed his conduct threatening to the public peace, prosecutors stacked 13 counts of vandalism against Olson, each of which carried a one-year prison sentence. After a four-day trial, a jury acquitted Olson on all counts.
5. Criminalizing Juvenile Misbehavior
A 13-year-old middle schooler in Albuquerque, New Mexico, was arrested under a vague statute criminalizing the interference with education at a school for acting out as a class clown.
While classroom disruption is a problem, using criminal law when an afternoon in the principal’s office will do needlessly inserts students into the criminal justice system and can have disastrous consequences for their lives.
At the behest of Planned Parenthood, California Gov. Jerry Brown signed into law a bill targeting whistleblowers.
The Planned Parenthood law makes it a crime to disclose a recording of a confidential communication involving a health care provider. There is no exception for the disclosure of unlawful conduct.
Despite a 2015 letter urging the state Legislature to avoid the “multiplication and particularization of criminal behavior,” Brown found it politically expedient to bow to Planned Parenthood and create a new law against disclosure when recording without consent is already prohibited.
Now is the time to combat overcriminalization, a phenomenon that disrupts and destroys the lives of everyday Americans who bear the brunt of bad policy judgments.
Adopting sound reforms will help prevent future injustices and abuses that have become all too commonplace in recent years, to the detriment of individuals and society.
