Anthony Cotton has an article online about Wisconsin’s criminal law, entitled, “Wisconsin needs to address over-criminalization.” Cotton writes that
A fundamental principle of the American justice system is individuals should not be subject to criminal prosecution and penalties unless they intentionally engage in inherently wrongful conduct or conduct that they know to be unlawful.
With this principle in mind, the National Association of Criminal Defense Lawyers and the Heritage Foundation, a conservative think tank, finished a long-term study on the dangers of over-criminalization.
The report, called “Without Intent,” found that by the end of 2007, the United States code included over 4,450 federal crimes. Many of these crimes have weak or no mens rea [intent] requirements. In response to this study, the House Judiciary Crime subcommittee held a hearing on over-criminalization, but to this day little meaningful reform has occurred.
The obvious danger of over-criminalization is that an increasing number of law abiding citizens will inevitably find themselves subject to criminal prosecution for behavior that is not inherently wrong.
….the same problems with over-criminalization exist here in Wisconsin. As evidence, one need only look at the local county jails and Huber (work release) facilities. So many people are locked up for so many offenses, that most facilities can no longer accommodate the inmates.
In response to these problems, many local sheriffs’ departments have elected to release Huber inmates on electronic monitoring. In some counties, such as Milwaukee, Dane and Winnebago, many Huber inmates will never serve a single day in custody – they will be placed on electronic monitoring and be required to remain in their residences during non-working hours.
The constant ratcheting up of criminal penalties has resulted in unintended consequences and a perverse situation the public is largely unaware of: more people face the prospect of more criminal charges (and with that, longer periods of time in jail), yet fewer people are actually serving that time in a jail setting.
When everything becomes a crime, nothing will be meaningfully criminal.
There’s a second problem, of criminal penalties: we are foolish to rely so much on penalties, even Draconian ones, to prevent criminal behavior. We have made, and will continue to make, criminal all sorts of behavior, but injuries from crimes still plague our cities and towns.
We’re well-past time for invigorated preventions efforts.
Every time someone drinks and drives, injuring or killing another, the criminal law has failed to deter an immeasurable and irreparable loss. Nothing the law offers, no human effort, can truly compensate a family or make a person so injured whole again. We use these terms, not for their literal accuracy, but as mere approximations of a justice we cannot deliver
And yet, and yet, we repeat a demand for greater penalties, at great cost to our state, while thinking less of public and private efforts to reform conduct. We will raid house after house, with so many people chasing each other, and stumbling around, but months later we will have the same problems we did before, now more covert, distributed more widely in smaller groups.
I’ll not argue against more stringent penalties, but I’ll wager that no penalties we impose will alone be sufficient.
We have wealth enough to persist as we have persisted for decades yet to come, but that persistence — that stubborn reliance on criminalization and punishment alone — will not prevent countless additional injuries.