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.

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