OVER-CRIMINALIZATION

Over-criminalization is a term which has gained popularity in the U.S. in recent years. It is about there being too many crimes combined with absurdly high penalties. 

 

The statistics in the U.S. are astounding. Between the 1920s and the early 1970s, the average incarceration rate in America was around 100 per 100,000 people with bumps up and down. It started an upward trend in the early 1970's reaching 153 in 1974. Then the law and order wave kicked in and the incarceration rate went crazy reaching 750 per 100,000 by 2006. In 2006 the U.S. housed 25% of the world’s prisoners - 1 in 100 of adult males were behind bars. Seven million Americans or 1 in every 33 persons were in prison, on parole, probation, or a related form of control by the criminal justice system.       

 

The imprisoning of the American blacks drove up the rate - for all African American men born between 1975 and 1979, their lifetime chance of spending at least a year in prison is 1 in 4. Black men are incarcerated at a rate 7 times higher than white males (3,059 per 100,000 vs. 456 per100,000); the rate for Latino men at 1,258 per 100,000 is nearly 3 times higher than for white men. Even for white males the incarceration rate in the U.S. is three times higher than it is in Canada or the U.K.

 

Suddenly even American conservatives are questioning the country’s over-criminalization. Throw a few white millionaires or billionaires into the pokey and there is whole new appreciation about imprisonment. Given that there are now more than 5,000 federal crimes on the books and as many as 300,000 regulatory crimes and additionally each and every state has its own voluminous criminal code, perhaps we should be surprised that only 1 in 33 Americans is officially a crook of one kind or another.

 

Many of these 5000 federal offences come with serious jail time. In 1999 Abner Schoenwetter, formerly a Miami seafood importer, was accused of buying lobster tails from a long-time supplier. He choose to fight the charge. The purchase allegedly violated harvest regulations in Honduras. Among the violations: The lobsters were in plastic bags rather than cardboard boxes. Although Schoenwetter provided American prosecutors with evidence from Honduran officials that no law had been broken and the attorney general of Honduras even filed a friend-of-the-court brief stating that the cited regulations had been voided and despite having no prior record, Schoenwetter was convicted and served six years in prison.

 

Another famous American case concerned Krister Evertson, an Eagle Scout with no criminal record He was initially arrested by four FBI agents wearing black SWAT gear and pointing automatic rifles at him because he was unaware that obscure federal regulations required him to put a certain sticker on his otherwise lawful UPS package. After spending 21 months in an Oregon federal prison, he lives today in a ramshackle aluminum trailer sitting on the fenced-in grounds of a construction company’s equipment yard. Because he was on parole, after being released he was not even allowed to move to Alaska, where he was arrested, to live with his 80-year-old mother for whom he used to care.

 

The U.K has been no laggard in the over-criminalization trend. Between 1997 and 2009 almost 3600 new criminal offences were created by the Government including 1036 offences which could be punished by imprisonment. There were no less than 26 different criminal justice bills. Along with this vast aggrandizement of criminal offences principles of justice and liberty in place for hundreds of years have been thrown into the trash can. Section 44 of the Terrorism Act allows police to stop and search people without the need to show that they have reasonable suspicion an offence is being committed. Section 18 of the Police and Criminal Evidence Act permits the police to search the home of an arrested but not charged person without the need for a warrant.

 

Canada’s Conservative government in Ottawa has introduced 69 "crime" bills since 2006. This government has also legislated mandatory minimum sentences - three years for having as few as six pot plants. Inevitably the meanness of the minimum sentence comes to the fore.

 

In Canada there used to be a firewall between serious criminal offences and minor offences or regulatory offences. The Criminal Code itself distinguishes between summary type offences which have a maximum punishment of six months and indictable offences which are serious crimes and have much longer maximum possible sentences. Unlike in the United States criminal law is solely a federal jurisdiction. Historically provincial offences were limited to regulatory ones with relatively small maximum fines ( mostly in $500.00 to $5,000.00 range) and prison sentences of six months or less.

 

This firewall is being jumped. The evils of civil forfeiture have made their way north of the border. Thusly a speeding offence in British Columbia which has a maximum fine of $500.00 is now the basis for the forfeiture of a $100,000.00 vehicle - effectively a 200 fold increase in the penalty. The province’s civil forfeiture law requires no mens rea and a civil standard of proof.

 

The B.C.’s Public Health Act introduced by the Liberals in 2006 is an example of provincial legislation which carries greatly enhanced fines and lengthier incarceration. Subsection 108 of the Act says that in addition to a penalty imposed under section 107 [alternative penalties], a person who commits an offence listed in .... .(c) section 99 (3) is liable on conviction to a fine not exceeding $3,000,000 or to imprisonment for a term not exceeding 36 months, or to both. Yes a fine of $3,000,000.00 and three years in prison. Bye, bye to the six month, $5,000.00 fine limitation.

 

What is that horrendous 99(3) offence that can result in a three year prison term. It is an offence under either section 15 of Act; i.e causing a health hazard or under section 26 which is a failure to provide a designated quarantine facility. Section 15 says "A person must not willingly cause a health hazard, or act in a manner that the person knows, or ought to know, will cause a health hazard." Health hazard in turn means (a) a condition, a thing or an activity that (i) endangers, or is likely to endanger, public health, or (ii) interferes, or is likely to interfere, with the suppression of infectious agents or hazardous agents, or (b) a prescribed condition, thing or activity, including a prescribed condition, thing or activity that (i) is associated with injury or illness, or (ii) fails to meet a prescribed standard in relation to health, injury or illness. This is the "killer" part of the definition - a prescribed condition is one set in regulation that requires approval (usually a rubber stamp) only by the Provincial Cabinet. A prescribed condition is a bureaucrat created offence which could be virtually anything, eg. playing overly loud music at a rock concert. In other words a relatively minor regulatory offence, which can be hatched by backroom bureaucrats, could be punished by a three million dollar fine and three years in jail.

 

The so-called criminal justice system has become so pervasive that the average person commits unaware offences on a daily basis that carry both significant fines and prison sentences. Accordingly a book written by Boston lawyer, Harvey Silverglade, is entitled " Three Felonies A Day: How the Feds Target the Innocent ".The thesis of the book is that the average person in the United States goes through a typical day, unaware that he or she has likely committed several federal crimes. Silverglade estimates that a typical American now unwittingly commits three crimes each day because of the thousands of broad and vague laws. In fact as illustrated by the Schoenwetter and Evertson cases, citizens from all walks of life including doctors, accountants, businessmen, political activists, and others have been the targets of federal prosecutions for even the most seemingly innocuous behavior and despite reasonably believing that they did nothing wrong, broke no laws, and harmed no one. With the proliferation of laws and the abandonment of traditional English common law principles such as mens rea, it has become almost impossible to lead a crime free life.