Wasted lives, wasted money: The offense of overcriminalization

Schoenwetter, who had no prior criminal history, was indicted and convicted on charges relating to lobsters he had agreed to purchase that, according to U.S. authorities, violated three Honduran administrative regulations. The U.S. claimed that, under Honduran law, there were undersized lobsters and lobsters with eggs in the shipment, and that the lobsters had been packaged in plastic, not regulation cardboard. The Honduran authorities, including the Honduran Attorney General, advised U.S. law enforcement authorities and the court that this effort to punish Schoenwetter and others under the Lacey Act for violating Honduran regulations was misplaced – the regulations in question had been declared null and void in Honduras. No matter, Mr. Schoenwetter was sentenced to over eight years in federal prison. He served most of his sentence and is now on supervised release.

How does one measure what was lost in this and other cases of wasteful criminalization and prosecution: Mr. Schoenwetter’s liberty and livelihood? The irretrievably missed economic activity and tax revenue from his work? The costs of law enforcement, lawyers, and court administration? Several years housing Mr. Schoenwetter in our prison system?

The world recently read about Mr. Schoenwetter’s case in a late July cover story from The Economist magazine, “Rough Justice: America Locks Up Too Many People, Some For Acts That Should Not Even Be Criminal.” On Tuesday, Congress will hear directly from Mr. Schoenwetter at a House hearing on “Reining in Overcriminalization,” sponsored by the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security.

As President of the National Association of Criminal Defense Lawyers (NACDL), I too will testify at this hearing, and share with Congress much accumulated data and research revealing how very far astray our “overcriminalization nation” has veered. Experts from numerous disciplines, vantage points and political backgrounds, including NACDL, have studied and reported on the abject failure of America’s across-the-board “tough on crime” approach over the last several decades.

Well, we know that in the year 1900, there were about 165 federal criminal laws on the books. By 1970, that number was 2,000. Today, there are over 4,450 federal crimes scattered throughout the United States Code, with estimates of as many as 300,000 federal regulations that can be punitively enforced. The problem is out-of-control and growing. Just this year, when Congress enacted financial reform legislation, it added more than two dozen new crimes.

For many, when it comes to regulation of social conduct, every problem is a nail, so all that’s needed is the hammer of criminalization. With every passing Congress, though, we are getting a better idea of exactly what this criminal justice structure looks like, and it is not pretty, it is not cheap, and it is surely not rooted in the American values of fairness, justice, and checked government power.

A few months ago, the Heritage Foundation and NACDL released a groundbreaking, non-partisan, joint report and set of recommendations on an important part of this problem, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law. At the report’s release, former Attorney General Edwin Meese III highlighted the absurdity of the expression “ignorance of the law is no excuse,” given the current volume of the federal criminal law. He’s right.

Overcriminalization and wasteful prosecution have led the United States to have both the highest absolute number of people in prison – approximately 2.3 million – as well as the highest rate of incarceration– roughly one in 100, when just counting adults – of any nation on earth. And even as the world’s incarceration leader, the U.S. can make no claim to be anywhere near the safest society in the world.

Exactly what is served by taking away so much of Mr. Schoenwetter’s life? Our constitution cannot afford the police and regulatory state we have become. And the American people simply cannot afford its tragic human cost or economic price tag. Bipartisan efforts to fix what’s broken here will be good for fairness and justice, good for the economy, and good for people’s confidence in government as a problem-solver.

Jim E. Lavine is the President of the National Association of Criminal Defense Lawyers.