Not just for criminals anymore

Criminal law in Texas is not just for criminals anymore, says Marc Levin of the Texas Public Policy Foundation's Center for Effective Justice. His new policy brief, "Not Just For Criminals: Overcriminalization In The Lone Star State," (pdf) argues that too often Texas law merges criminal and tortious behavior.

Levin says 779 Texas statutes contain the word misdemeanor, while just 64 of those are in the Penal Code or the Code of Criminal Procedure. The word felony, he said, appears 418 times in Texas statutes, but just 64 are in the Penal Code or the Code of Criminal Procedure. Aside from statutes barring convicted persons from employment or other benefits, most of those other statutes, Levin said, apply criminal penalties in areas such as agriculture, healthcare, natural resources and insurance.

(Texas LULAC last year tallied 1,941 separate acts that have been declared felonies, but many of those were separate acts delineated within the same code.)

Levin examines bills in the 79th Legislature that criminalize the following areas:

• General business activities
• Regulated business activities
• Occupational licensing
• Non-economic activities
• School discipline

His conclusion: Texas needs to reverse the trend toward criminalizing these areas. He suggests several approaches:

• Avoid creating new crimes in the first place.
• Utilize civil fines instead of misdemeanors
• Utilize civil penalties to enforce civil laws

The last suggestion may be a surprise to some, since TPPF has long been a strident advocate for Texas' tort reform movement. Levin acknowledges some conservatives will fear a trial lawyer bonanza, but says "there are many ways to avoid such excesses," such as limiting causes of action to individual, not class action cases, capping claims, and requiring binding arbitration, with judicial appeal limited to the question of whether an arbitrator's decision was an "abuse of discretion."

I'm gonna quibble with Mr. Levin on that last point. I don't know much about tort law, but I've watched enough bad cops routinely get their jobs back on Texas police forces through binding arbitration under Texas' civil service code that the idea makes me wary. Personally, I'd prefer such judgments be made by, well, elected judges, so if the public thinks a judge abused his discretion, they can oust the sumbitch in the next election.

Other than that, though, I broadly agree with Levin's overarching argument in his brief. His focus on criminalizing business activities is a welcome addition to liberal analyses of overcriminalization. Personally I welcome the debate over whether criminal or civil liability is deserved in those instances -- on the environment, for example, I want the air and the water clean, but I harbor no vindictive fantasies about imprisoning corporate executives over it (I'm speaking here of pollution regs, not Enron-style fraud).

Though he doesn't mention it, Levin's call for civil instead of criminal approaches to resolving society's conflicts meshes nicely with concepts of "restorative justice" that are gaining popularity among prison ministries and even some prosecutors. According to this view, what's needed isn't always to vindictively punish. What's often needed is for the offender to acknowledge guilt and to make the victim whole.

Levin provides an appendix (pdf) detailing several Texas bills he considers examples of overcriminalization trends (a comprehensive list would be a small book), and even created a checklist for legislators (pdf) to determine whether a new crime needs to be created. Interesting stuff, and more fodder for Doc Berman's thesis regarding a "new right" on sentencing reform.