Thursday, December 11, 2014


George Will and I agree on practically nothing (including a few things in this column, like his praise of "Broken Windows" policing). But his larger point, on the over-criminalization of American society, and why Eric Garner died, not just because of brutal law enforcement, but because of inept and slipshod law making, is spot on.

Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes.

Harvey Silverglate, a civil liberties attorney, titled his 2009 book “Three Felonies a Day” to indicate how easily we can fall afoul of the United States’ metastasizing body of criminal laws. Professor Douglas Husak of Rutgers University says that approximately 70 percent of American adults have, usually unwittingly, committed a crime for which they could be imprisoned. In his 2008 book, “Overcriminalization: The Limits of the Criminal Law,” Husak says that more than half of the 3,000 federal crimes — itself a dismaying number — are found not in the Federal Criminal Code but in numerous other statutes. And, by one estimate, at least 300,000 federal regulations can be enforced by agencies wielding criminal punishments. Citing Husak, professor Stephen L. Carter of the Yale Law School, like a hammer driving a nail head flush to a board, forcefully underscores the moral of this story:

Society needs laws; therefore it needs law enforcement. But “overcriminalization matters” because “making an offense criminal also means that the police will go armed to enforce it.” The job of the police “is to carry out the legislative will.” But today’s political system takes “bizarre delight in creating new crimes” for enforcement. And “every act of enforcement includes the possibility of violence.” 
That's the defacto assumption of law enforcement. It doesn't matter if you're a gun-wielding lunatic running through the streets, or a 90 year old grandmother being pulled over on a routine traffic stop. EVERY encounter includes the possibility of violence.

Even busting someone for selling (or smoking) cigarettes.
Carter continues: “It’s unlikely that the New York Legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. Officials who fail to take into account the obvious fact that the laws they’re so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants.”

Garner lived in part by illegally selling single cigarettes untaxed by New York jurisdictions. He lived in a progressive state and city that, being ravenous for revenue and determined to save smokers from themselves, have raised to $5.85 the combined taxes on a pack of cigarettes. To the surprise of no sentient being, this has created a black market in cigarettes that are bought in states that tax them much less. Garner died in a state that has a Cigarette Strike Force.

He lived and died in a country with about 5 percent of the world’s population but 25 percent of its prisoners. In 2012, one of every 108 adults was behind bars, many in federal prisons containing about 40 percent more inmates than they were designed to hold.

Most of today’s 2.2 million prisoners will be coming back to their neighborhoods, and few of them will have been improved by the experience of incarceration. This will be true even if they did not experience the often deranging use of prolonged solitary confinement, which violates the Eighth Amendment’s ban on “cruel and unusual punishments” and is, to put things plainly, torture.

The scandal of mass incarceration is partly produced by the frivolity of the political class, which uses the multiplication of criminal offenses as a form of moral exhibitionism. This, like Eric Garner’s death, is a pebble in the mountain of evidence that American government is increasingly characterized by an ugly and sometimes lethal irresponsibility.
We need not only responsible sentencing reform, but we need to decriminalize a plethora of behaviors that are not a threat to anyone in society. The "metastasizing body of criminal laws" is the government (and thus enforcement) run amok.

The Garner case is complicated and shows several things: law enforcement on militarized steroids, a DA system that is broken (DA's should never, under any circumstances, be allowed to decide the fate of a police officer charged with a crime due to conflict of interest), and the like, but frankly, the libertarians have this one right. If you're not doing something that threatens another person's right to life, liberty or property, it should not be illegal, and the police should not be involved in the least.

And that includes even something like selling un-taxed cigarettes, which is a direct result of the anti-smoking zealots and their creation of  a black market for cheaper smokes via higher taxes. When we have police departments with "Cigarette Strike Forces", you know we've gone completely berserk.

Eric Garner died just as much at the hands of the anti-smoking fascists in this country as he did in that illegal chokehold.

A cruel irony, one would note.

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