Overcriminalization and tort reform: No easy choices for conservatives

Yesterday, Grits attended a panel at the Texas Public Policy Foundation's annual Policy Orientation (a multi-issue conference sponsored by a conservative think tank in Austin) on the topic of "Overcriminalization." Attendees were treated to one of the more productive, frank discussions of the topic among ideological conservatives I've run across, maybe ever.

Shannon Edmonds of the Texas District and County Attorneys Association said the fundamental problem is that the Texas Legislature is "addicted" to creating new crimes and boosting penalties for existing ones, joking that, “Admitting you have an addiction is the first step on the road to recovery.” Since 2005, he said, the Texas Lege has created 233 new crimes, by his count:

'05: 49
'07: 50
'09: 40
'11: 53
'13: 41

TDCAA doesn't include in that count new ways to commit old offenses or so-called "enhancements" that merely increased penalties. These are all activities that were legal before and illegal now - an average of 47 new items per session. After Texas revamped its Penal Code in 1993, there were 160 enumerated crimes on the books, Edmonds told the audience. Today, there are around 225 crimes in the Penal Code, said Edmonds, and more than 1,500 in other parts of the law. The Occupations Code alone now contains more crimes than did the entire Penal Code 20 years ago. If you want less government, Edmonds told the crowd, the Legislature can't keep giving the government more and more things to do.

Paul Larkin of the Heritage Foundation aptly noted that "overcriminalization" has several components, occurring when there are too many laws, when laws have too severe a penalty, as well as when the state uses criminal law as a regulatory device. In many cases, he said, the state has criminalized behavior that historically society has not considered "blameworthy," often to protect "rent-seeking activity." In essence, he argued, one way to enlarge the scope of your business is to make it a crime for other people to compete with you.

Larkin suggested four, related responses aimed at reducing overcriminalization. 1) Don't pass new criminal laws. 2) Cull unnecessary statutes. 3) Only criminalize "willful" behavior, buttressing the concept of mens rea, or criminal intent. And finally, 4) allow a mistake of law to be raised as a defense in situations where no reasonable person would know a particular act is a crime. For example, he said, everyone knows you can't rob, rape, or murder, but not everyone knows what items they throw in the trash may qualify as hazardous waste.

Problem is, society still needs ways to disincentivize improper disposal of hazardous waste. That essentially leaves two options: Regulatory enforcement and civil litigation, both of which conservatives traditionally have railed against with even more fury than "overcriminalization."

State Rep. Bryan Hughes, while acknowledging that, in the tort-reform era, he was “wandering off into traffic,” proposed what he called a “wonderful solution” to the overcriminalization problem: Bolstering rights under the 7th Amendment to the US Constitution to sue over torts in civil court. Regrettably, there was no one in the room from Texans for Lawsuit Reform to rebut that suggestion, which incidentally was echoed by TDCAA's Edmonds. I'd have loved to hear their reaction to the idea.

There's a certain historical symmetry to the notion of reinvigorating private litigation to reduce overcriminalization. It's a relatively modern concept that, as Edmonds put it, crime victims get "free lawyers," which we call "prosecutors." Under 18th century English common law, as noted by David Friedman, "Prosecution of almost all criminal offenses was private, usually by the victim. Intermediate punishments for serious offenses were strikingly absent" and there were "no public officials corresponding to either police or district attorneys." Though by 1820 most US states had some form of public prosecutor, "privately funded prosecutors constituted a significant element of the state criminal justice system throughout the 19th century," historian Robert Ireland has written. Indeed, he noted, there is evidence that railroad companies hired some of the prosecutors who secured the conviction of Frank James for murder and train robbery.

Certainly the modern practice of having public prosecutors employed by the state evolved for good reasons: For example, public prosecutors are (supposedly) bound to presume a defendant innocent until proven guilty, while private prosecutors were paid to assume the defendant guilty and seek a conviction. But when we're talking about crimes lacking mens rea - essentially torts that have been criminalized - the legacy of private prosecution may still have value. That's especially true in instance where criminal law is used to bolster rent seeking activities and/or commercial interests. Arguably, some of these "offenses" should be handled by private attorneys in civil courts.

Rep. Hughes offered an anecdote showing how the use of criminal law in commercial disputes can distort justice, describing a constituent of his named “Brenda” who bounced a check for $410 in 2004. She was prosecuted, appointed a state-paid defense lawyer, and received deferred adjudication probation, which required payment of probation fees, fines, etc.. In 2008 she lost her job, quit paying her probation fees, and stopped attending required meetings with her probation officer. Her probation was revoked and she was sentenced to 18 months in state jail, Hughes said. The irony, though, was that over course of her sentence she had paid thousands of dollars in probation fees to the state, but none of the money went to the business to whom she bounced the check. (The use of prosecutors' bounced check divisions is particularly insidious when they're employed on behalf of payday lenders, a topic The Texas Observer has explored and this blog has deplored.)

The conservative movement has a fundamental dilemma if they hope to address overcriminalization. Promoting "tort reform" has been a huge source of campaign funds for conservative candidates, who have also historically fought new regulations on behalf of business-oriented constituents. However, that doesn't stop other, more numerous constituents from looking to government for "justice" when they've been wronged, which is why such regulations end up in the criminal code instead of being enforced by regulatory bodies or resolved through civil lawsuits.

Panel moderator Vikrant Reddy mentioned the absurdist Politifact fact check of a Grits for Breakfast claim that there are eleven different felonies in Texas you can commit with an oyster. (Politifact said it was "mostly true" because it might be 16, or seven, depending on how one counted them.) All those oyster laws are items that could and should be handled more effectively either through regulations or in civil court. (Most of them have never been prosecuted.) But when conservative politicians reflexively oppose business regulation and neuter the civil courts, people are going to seek redress somewhere. However absurd and ineffectual, creating new criminal laws allows politicians to claim they're "doing something," even if it's mainly symbolic.

When Republicans were the minority party, they could advocate "less government" as a general meme on all fronts and no one thought much about it. But now that they control all three branches of Texas state government, when the public seeks redress of their grievances, politicians can't say "no" to everything. Sue in civil court? No, we'll limit damages through tort reform. Regulation by state agencies? No, it would make businesses inefficient. So if conservatives also want to fight "overcriminalization," what means are left for government to respond to the concerns of constituents? Incumbent politicians don't get to just tell them, "Sorry, you're screwed." Not if they want to stay in office.

I agreed with almost everything said yesterday about overcriminalization, but in the end conservatives are confronted with hard choices. Government would surely be "smaller" if more disputes were handled in civil than criminal courts. But going that route would inflame powerful constituencies. The principled path is seldom the easiest one.

MORE: See quotes culled from yesterday's event on the Right on Crime Twitter feed.