Tuesday, July 26, 2011

Counting crimes: State and federal

Last Friday, thanks to the generosity of Grits readers, I attended a post-legislative briefing put on by the Texas District and County Attorneys Association. The theme of the event, if there was one, was overcriminalization. TDCAA lobbyist Shanon Edmonds estimated that the Texas Legislature created 53 new crimes in the most recent session, up from an average of 39, by his count, over the prior decade. That's only new crimes, and doesn't included dozens of other penalties that were "enhanced" (increased), including three new non-capital crimes boosted to life without parole.

Why do they do it? Edmonds blames the media following the lead of Nancy-Grace types in pursuit of ratings instead of truth. As an example, he cited the proposal for "Caylee's Law" following the recent Casey Anthony verdict in Florida, which would make it a federal crime not to report a missing child. According to Edmonds the law is unnecessary in Texas. There are at least seven crimes on the books here, he said, with which Anthony could be charged besides murder, including tampering with physical evidence - a second degree felony. Even though it's unnecessary, Edmonds declared "I guarantee you" the Lege will pass Caylee's Law in 2013. He thinks they simply won't be able to help themselves.

Relatedly, the Wall Street Journal published a story this week criticizing the awesome and growing number of federal crimes on the books. This notable excerpt attempted to quantify the growth:
The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. By the turn of the 20th century, the number of criminal statutes numbered in the dozens. Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

There are also thousands of regulations that carry criminal penalties. Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses.

Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.

The American Bar Association tried in the late 1990s, but concluded only that the number was likely much higher than 3,000. The ABA's report said "the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades."

A Justice spokeswoman said there was no quantifiable number. Criminal statutes are sprinkled throughout some 27,000 pages of the federal code.

There are many reasons for the rising tide of laws. It's partly due to lawmakers responding to hot-button issues—environmental messes, financial machinations, child kidnappings, consumer protection—with calls for federal criminal penalties. Federal regulations can also carry the force of federal criminal law, adding to the legal complexity.
In Texas we have the same problem with counting the number of crimes. Shannon Edmonds' estimates of new crimes seldom match up precisely with the count from the Board of Pardons and Paroles (BPP), which after each legislative session counts the new felonies because each offense must be assigned a risk level for purposes of determining parole. After the last session  the BPP counted 2,383 felonies on the books, including 11 involving oysters. (Lying about the size of a fish in a tournament is the only new seafood related felony I'm aware of from the 82nd session.) Marc Levin of the Texas Public Policy Foundation has his own, lower count using a different methodology - around 1,700. And none of those numbers include misdemeanors, municipal Class C offenses, or agency rules that carry the force of law. For those reasons and others, just like with the feds, nobody can agree on a number.

Bottom line: How many crimes are there? So many they cannot be counted, like the stars in the sky. Which raises the question: How can you know for sure if you're breaking one?

RELATED: From the Heritage Foundation, "Criminalization Without Justification."

See related Grits posts:


Anonymous said...

Jesus Christ, Edmonds is one of the worst of the tuff on crime types out there. His comments on the TDCAA listserve regularly discuss ways to get around constitutional protections. I remember them having a conniption fit when the supreme court ruled that once a suspect was handcuffed, they could no longer justify a search of his car based on the safety of the officer. Hell, they even argued that they should leave the suspect unhandcuffed! In other words, he'd rather see an officer's safety compromised in order to violate the Constitution that follow the law.

What a coward.

Gritsforbreakfast said...

Shannon is not one of the worst, IMO. We often disagree, but he's not a zealot, nor a coward.

Anonymous said...

Overcriminalization is the first step towards Totalitarianism of our society. The second step of course being overpolicing, which follows shortly after. One can hardly expect to take a 500-mile trip by car anymore without being stopped for some imagined traffic violation.

Edmonds may be correct in his assumption regarding the Nancy Graces, but here in Texas, as well as Florida and California, most of the blame could probably be placed on the Private Prison Industry who own the politicians. Just ask Sen. John Whitmire, who authors dozens of laws each year then sends his bill to the PPI...

DEWEY said...

Wait a minute. We need to keep our prisons full Somehow !!! (Sarcasm is one of my better virtues).

-Shannon Edmonds said...

cow·ard [kou-erd]
1. a person who lacks courage in facing danger, difficulty, opposition, pain, etc.; a timid or easily intimidated person.
2. a person who posts anonymous blog comments.

I'll give Anonymous at 9:13:00PM $20 if (a) he/she has ever actually met me and (b) he/she identifies himself/herself (and is confirmed by IP address thru Grits).

Here, chicky-chicky-chicky ...

Anonymous said...

Ya know how many Shannon Edmonds there are in Dallas alone? Clicking the link to Shannon Edmonds' name does not take you to her home page, or other identifying information. Instead, she / he hides behinds the all-inclusive webpage at http://www.tdcaa.com/, which is equivalent to hiding behind a barn. Pretty cowardly.

Shannon Edmonds said...

I'll take that as a refusal.

But thanks for proving my point.

Texas Maverick said...

I found most of Shannon's testimony before the committees to be rational even though I didn't always agree. Folks from Houston PD and Sheriff, that's another story. Shannon, would love to discuss some of the failed bills with you in person. If we can stop the enhancement efforts, maybe we can concentrate on reform and best practices recommended from NIC and Justice making our money work more effectively. Rep Dutton's bill lowering the classification for low level drug possession was a good example. What do you think?