Texas' Right Confronts 'Overcriminalization'

When Texas Land Commissioner Jerry Patterson first ran for the state Legislature, he said today at the Texas Public Policy Foundation's luncheon forum on "Overcriminalization," he purchased a billboard along a major highway featuring the slogan, "Limit politicians' terms, not prisoners' terms."

Today, Patterson said, he disagrees with both parts of that statement. The voters should be the arbiter of term limits, he said, and his tough-on-crime zeal lessened considerably once he got to the Legislature and realized there are just "too many damn laws."

Typically, he said, they are proposed by "Do-Gooders" who want to criminalize activity they don't like. City councils are the worst, Patterson said. "The greatest threat to liberty is a city council," because they are "outcome-oriented" and tend to have less respect for separation of powers and how their role interacts with people's rights and the rest of government. (As an aside, that description certainly fits the ignominious Austin City Council.)

As an example, he cited municipalities' efforts to thwart the Legislature's decision to allow licensure of individuals to carry concealed weapons, which Patterson sponsored in the Texas Senate. They'd pass ordinances banning guns in city-owned premises, parks and events, post signs without legal weight or merit claiming guns were forbidden when they weren't, and generally attempted to use an inhospitable attitude to restrict licensed gun carriers in lieu of legal authority.

Indeed, Patterson had a funny schtick about government signage. Usually when a sign says something is true "under penalty of law," Patterson said, the government is "running a bluff"! He said he had occasionally physically removed signage that misstated the law about concealed weapons permits and taken it to the building manager with a complaint.

Crimes "follow people around their entire lives," said Patterson, "forever," so society should be more reticent to punish. "Deprivation of liberty or property" shouldn't be permissible except in cases of serious misbehavior, he said.

Gene Healy of the Cato Institute in D.C. was next up, and gave a polished presentation about overcriminalization focusing more on the federal level. He identified three worrisome trends:

• Overcriminalization (making criminal acts of civil wrongs or things that just shouldn't be crimes).
• Over-federalization
• Using criminal law enforcement tactics against ordinary non-violent citizens "who aren't crooks or thugs."

"In a free society there shouldn't be many things for which you can be handcuffed and locked up," Healy said, but over the last decades an "unholy alliance" of big government liberals and tough-on-crime conservatives have driven overcriminalization policies. New laws increasing prison sentences, Healy said, have become their own "mode of expression" for legislators -- a way they express their values, what they stand for, specifically what they're against.

There are around 4,000 federal crimes, Healy reported, though no one knows for sure because the task of counting is too complex. (In Texas, there were 1,941 separate felonies, excluding misdemeanors, when the legislative session began, but a few more have slipped by since then and will likely become law.) There are so many laws on the books, Healy said, that on paper nearly everyone is a criminal. That means, though, that the "law on the street" becomes that police and prosecutors pick and choose who to go after and why.

He cited an FDR-era Supreme Court jurist whose name I missed decrying that circumstance, predicting that in that case prosecutors will go after whoever they can get, not the cases that most need to be prosecuted. (That's exactly the circumstance in which we find ourselves today, IMO, particularly regarding drug and firearms prosecutions.)

Healy pointed out that the Constitution affords only the most limited enforcement powers related to things like treason, piracy, counterfeiting and bribery, but that as written the federal government was not expressly afforded police powers. "Unruffled, knee-jerk federalization flies in the face of the Tenth Amendment," he said. He never opined that the federal government has no business being involved with the drug war, but the implication was unavoidable from his line of thinking.

The youngish Cato Institute scholar had an amusing litany of examples of silly crimes and prosecutions, but my favorite was learning that it's a federal crime to disrupt a rodeo. That revelation also allowed him to get off the best line of the event: "I yield to no man in my desire for an orderly rodeo," he declared, but there was no constitutional reason it should be a federal crime.

Healy also worried about a trend toward sending people to prison for mere negligence, that is, failing to require that intent to commit an offense be a part of the crime, a theme moderator Marc Levin later picked up praising a Terry Keel bill making cities require a "culpable mental state" as a component of Class C misdemeanor crimes with fines greater than $500. That basically means the offender, in order to receive the higher fine, had to know what they were doing and that it was wrong (see coments for a better definition of "culpable mental state.")

Healy's final theme -- the use of heavy handed tactics for minor offenses -- could have come out of the ACLU playbook as he criticized "using handcuffs, jails and tasers for situations that don't warrant it." His examples were mostly federal, the most ridiculous being a case where a woman was handcuffed and arrested at customs in Miami because, a year earlier, she'd allegedly failed to pay a fine for leaving a bag of marshmallows out at a Yosemite Park campsite! "In a free society, an ordinary citizen minding her own business shouldn't be arrested and humiliated," Healy said. That was refreshing to hear. I doubt many ACLUers would have put it much differently.

Healy's best points, though, came with his declaration that the trend toward overcriminalization "is not tough on crime." That certainly made my ears perk up. Being tough on crime, he said, means making intelligent distinctions between conduct that threatens life and property and conduct that is less grave. The proliferation of thousands of laws is "weakening the moral force of criminal law," Healy said, "making a joke out of the criminal law, making it that much easier for people to disrespect the law." He thought this trend, in aggregate, undermines the unwritten social contract that binds people to their government.

Healy's new book, Go Directly to Jail: The Criminalization of Almost Everything, definitely goes on the summer reading list (which is stacking up, incidentally).

The Texas Association of Business' Bill Hammond was sort of the oddball panelist in the group -- I doubt, for example, that he ever voted against many prison-sentence-increase bills in his four terms in the Texas Legislature. He started by asking if anyone from the press was in the room. I am many things, but I am not the press, so I did not declare myself; I mention it, though, because Mr. Hammond may be surprised to read this account, and for that I'd beg his indulgence.

Hammond thought legislators should be flatly restricted by rule as to how many bills they can file, since no one can keep track of everything that's moving at the Lege. The Texas Association of Business, he said, considered that it is "better to kill bills than fix them," because the fix usually involved some compromise of principle or efficacy that resulted in bad law. In the case of bills creating new criminal conduct, there's "usually an existing law covering such activity."

Given his group's tussles with the Travis County District Attorney regarding alleged campaign finance law violations, it's not surprising Hammond spent a lot of his time decrying restrictions on free speech, especially the McCain-Feingold law which he said limits free speech to 275 days per year -- since groups like his cannot spend money on broadcast advertising during the period leading up to an election.

The Texas Legislature was considering legislation Hammond considered "worse" than the federal law that would "criminalize free speech," but the bill was stopped, he said, thanks to the "courage of Mary Denny."

Marc Levin, the new head of TPPF's Center for Effective Justice, closed out the panel with an adumbration of his findings in his recent report, "Not Just For Criminals" (pdf), discussed by Grits earlier here. He went through the status of several bills discussed in the appendix to that report. Given that he started pretty late out of the gate, Mr. Levin's been doing some interesting stuff this sesson, IMO, even if he is Sarah's nemesis. I'm just sort of following their stuff from a distance, and this is the first TPPF event I've attended in a decade. But the themes expressed today sharply contrast with historically more common tough-on-crime rhetoric from the right. Further evidence that Doc Berman is onto something.

For those interested, Ann is diligently collecting materials from TPPF on criminal justice reform here.