The Criminalization of America

Published March 2007

Texas Rep. Wayne Smith is tired of hearing about parents missing meetings with their children’s teachers. His proposed solution is simple: Prosecute such parents as criminals. In Louisiana, state Sen. Derrick Shepherd is tired of seeing teenagers wearing popular low-rider pants that show their undergarments — so he would like to criminally charge future teenagers who are caught “riding low.”

Across the USA, legislators are criminalizing everything from spitting on a school bus to speaking on a cellphone while driving. Criminalizing bad behavior has become the rage among politicians, who view such action as a type of legislative exclamation point demonstrating the seriousness of their cause. As a result, new crimes are proliferating at an alarming rate, and we risk becoming a nation of criminals where carelessness or even rudeness is enough to secure a criminal record.

There was a time when having a criminal record meant something. Indeed, it was the social stigma or shame of such charges that deterred many people from “a life of crime.” In both England and the USA, there was once a sharp distinction between criminal and negligent conduct; the difference between the truly wicked and the merely stupid.

Legislators, however, discovered that criminalization was a wonderful way to outdo one’s opponents on popular issues. Thus, when deadbeat dads became an issue, legislators rushed to make missing child payments a crime rather than rely on civil judgments. When cellphone drivers became a public nuisance, a new crime was born. Unnecessary horn honking, speaking loudly on a cellphone and driving without a seat belt are only a few of the new crimes. If you care enough about child support, littering, or abandoned pets, you are expected to care enough to make their abuse a crime.

High crimes

Consider the budding criminal career of Kay Leibrand. The 61-year-old grandmother lived a deceptively quiet life in Palo Alto, Calif., until the prosecutors outed her as a habitual horticultural offender. It appears that she allowed her hedge bushes to grow more than 2 feet high — a crime in the city. Battling cancer, Leibrand had allowed her shrubbery to grow into a criminal enterprise. (After her arraignment and shortly before her jury trial, she was allowed to cut down her bushes and settle the case.)

Of course, it is better to be a criminal horticulturalist than a serial snacker. In 2000, on her way home from her junior high school in Washington, D.C., 12-year-old Ansche Hedgepeth grabbed some french fries and ate them as she went into the train station. In Washington, it is a crime to “consume food or drink” in a Metrorail facility. An undercover officer arrested her, searched her and confiscated her shoelaces.

Running out of adult targets, many state laws pursue the toddler and preteen criminal element. In Texas, children have been charged for chewing gum or, in one case, simply removing the lid from a fire alarm. Dozens of kids have been charged with everything from terrorism to criminal threats for playing with toy guns or drawing violent doodles in school.

In the federal system, Congress has been in a virtual criminalization frenzy. There are more than 4,000 crimes and roughly 10,000 regulations with criminal penalties in the federal system alone. Just last year, Congress made it a crime to sell horse meat for human consumption — a common practice in Europe where it is considered a delicacy. Congress has also criminalized such things as disruptive conduct by animal activists and using the image of Smokey Bear or Woodsy Owl or the 4-H club insignia without authorization.

The ability to deter negligence with criminal charges has always been questioned by academics. Negligent people are, by definition, acting in a thoughtless, unpremeditated, or careless way. Nevertheless, prosecutors will often stretch laws to make a popular point — even when the perpetrators have suffered greatly and shown complete remorse.

In 2002, Kevin Kelly was charged criminally in Manassas, Va., when his daughter, less than 2 years old, was left in the family van and died of hyperthermia. With his wife in Ireland with another daughter, Kelly watched over their 12 other children. He relied on his teenage daughters to help unload the van and did not realize the mistake until it was too late.

The suggestion that people like Kelly need a criminal conviction to think about the safety of their children is absurd. Kelly was widely viewed as a loving father, who was devastated by the loss. The conviction only magnified the tragedy for this family. (Though the prosecutors sought jail time, Kelly was sentenced to seven years probation, with one day in jail a year to think about his daughter’s death.)

The cost to all of us

The criminalization of America might come as a boon for politicians, but it comes at considerable cost for citizens and society. For citizens, a criminal record can affect everything from employment to voting to child custody — not to mention ruinous legal costs.

Yet, it now takes only a fleeting mistake to cross the line into criminal conduct. In Virginia, when a child accused Dawn McCann of swearing at a bus stop, she was charged criminally — as have been other people accused of the crime of public profanity.

Our insatiable desire to turn everything into a crime is creating a Gulag America with 714 incarcerated persons per 100,000 — the highest rate in the world. Millions of people are charged each year with new criminal acts that can stretch from first-degree murder to failing to shovel their sidewalks.

We can find better ways to deal with runaway bushes, castaway pets, or even potty-mouth problems. Congress and the states should create independent commissions to review their laws in order to decriminalize negligent conduct, limiting criminal charges to true crimes and true criminals. In the end, a crime means nothing if anyone can be a criminal.

22 thoughts on “The Criminalization of America

  1. […] Baggy Pants and the Law Published August 24th, 2007 Ruminations , Society Atlanta appears ready to use the power of the law to combat the scourge of baggy pants. That’s right, baggy pants. It appears that crime, drug, and poverty are no longer pressing issues. They are not the first to tackle the issue of teen clothing, as this prior column notes, click here […]

  2. Prof. Turley, thanks so much for writing this article. It is indeed scary to know that anyone can be arrested, and very possibly convicted, for being guilty of nothing more than making the wrong person (in this case a cop) angry that day.

    If this tidal wave of abusive legislation isn’t stopped, what’s next? Some lawmaker deciding that any church non-attendance should be a felony offense as well? Gee, would that merit only six months in prison or six years? Will some politician like Newt Gingrich convince enough of his buddies that free speech which criticizes either himself, Republicans or the Bush administration is “sedition” and vote to make that a felony offense too?

    Citizens can write to their elected officials about this, for all the good it would do. Odds are, anything that sounds critical of their policies would go into the wastebasket. Our elected officials need to know that making targets out of innocent citizens will NOT get them votes at election time. Maybe you and Keith Olbermann could remind them? Please? :-)

    Susan in VA

  3. This is what happens when you allow the left to get as far as they’ve gotten. The left is slowly taking away our liberties and we need to pick up arms and fight back by starting a war if we’re going to get our country back.

  4. Jon:

    How very neo-con of you. Thank you for “letting” us have our way, the results of numerous elections and court decisions not withstanding. Where, pray tell, would you start this “war”? Who would you fight? How would you “win”? These are questions beyond most neo-con thinking,and sadly, likely beyond yours. As long as the far right has champions such as you, we in the left may rest soundly in our beds.

    P.S. A little history lesson for you: the far right tried that little civil war maneuver in 1861. It didn’t go very well then either.

  5. I’m thinking it might be a good idea if Keith Olbermann added something like the “Most Idiotic Crimes in the World” category to his COUNTDOWN program. If he does, he can start with the ones you already mentioned, JT, plus this latest one.

    Man Gets 30 Days in Prison for Sharing Snack Cake

    I guess common decency and kindness, even in jail, are considered “crimes” now? I wish there was a “thoroughly disgusted” emoticon around somewhere! Sorry JT and everyone, this kind of insanity just makes me spitting mad.

  6. Hey Susan,

    Hope you are well. NOW did a program on private contract prisons and how many people we imprison in this country last night.


  7. Jill wrote:

    Hey Susan,
    Hope you are well. NOW did a program on private contract prisons and how many people we imprison in this country last night.

    Hi Jill, hope you’re well too. I have to wonder, as any concerned citizen would, just how many people we are wrongly imprisoning for these so-called “crimes” that have in fact, caused NO bodily injury or death to someone, and caused NO money to be illegally taken from anyone. The fact that some neocon idiots find these types of outrages acceptable is even more alarming.

  8. Thank you Jonathan for posting this. It saddens me greatly that the US is going down the same road as Britain from which I emigrated last year.

    One of the many curses of politicians is their constant need to be doing something and seen to be doing something. Having done it, their latest idiotic petty regulation is immediately picked up and enforced with almost religious zeal by minor bureaucrats. Hence the cases cited in your article.

    There are several downsides to this. The criminalization that you mention, the minimal advantage that the rest of society gain from these prosecutions and the diversion of valuable resources away from fighting real crime. This is a particular problem in the current economic climate where resources in most states are severely stretched.

    The “crimes” you cite are soft targets from the point of view of law enforcement. Easy prey! Not the sort of people who are going to start a gun fight to avoid arrest.

    Sadly idiotic laws and regulations never seem to get repealed once on the statute book.

    Richard Clark

  9. Professor Turley:

    Thank you so very much. You are heroic to this end.

    I must say that I think the cops want everyone to have a criminal record (in order to obtain fingerprints and/or eventually biometric data on everyone). They hate it that they cannot find everyone’s intimate data (enter stage left: Obamacare). Still, they have other intents.

    And I think the ultimate goal is to make us all criminals so that we can have our guns taken away.

    But there will be a problem in trying to do this, and that is people with criminal records don’t make good incomes and therefore cannot be taxed at a high enough rate to fund the ever expanding police-state with its requisite expensive retirement, pension, and benefit programs

    It will eventually collapse large part because of the cops (and those who lobby for them) themselves. Then things will get very ugly.

    Like Paul Craig Roberts points out in his book The Tyranny of Good Intentions”, people have lost the important idea that the law should be a shield to protect the citizen from the state instead of a weapon used to attack him.

    The reason we have let this happen is our government schools. They will not teach our children about their heritage from the Rights Of Englishment, the Magna Carta, the Anglo-Saxon tradition. But when you (the government schools) hate that tradtion, why should you teach it? t

    The refuse to teach that government was the most dangerous institution last century and that government should be mistrusted and kept humble. The only anti-government thing they teach is that kids should be anti-republicans. When, in fact they should even be teaching anti-compulsory public schools (if they really believed in liberty). And they should teach that Obama and the democrats ought to be as much mistrusted as Bush and the republicans.

    But that is not what happens in the leftist control public schools.

  10. Honestly, I really have to disagree with this. I was agreeing at first with some of your comments about the politeness police, but you lost me when you started defending dads who didn’t pay child support and even caused the death of their children.

    In many cases, a father’s child support payments can be the difference between putting food on a child’s plate and clothes on her back.

    The dad who allowed his child to die in a van in clearly not careful enough to protect one girl, let alone 12.

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