Monday, February 7, 2011

Here's an idea for limiting government

Courtesy of Grits for Breakfast, here's the Texas Public Policy Foundation's Legislator's Guide on Overcriminalization.

Texans once lived under a criminal code that resembled the Ten Commandments. Today, nearly 10,000 federal, state, and local offenses confound more often than command, diluting the traditional focus of criminal law on truly wrongful conduct. 

According to the TPPF, there are 254 traditional criminal offenses on the books in Texas -- theft, assault, burglary, murder, etc. There are almost 1500 other criminal offenses found outside the penal code - most of them being regulatory offenses. Many of which are strict liability crimes -- something our founding fathers frowned upon.

Traditionally in criminal law there must be both a bad act and an intent to commit that act in order for their to be a crime. Most crimes require the state to prove that a person acted intentionally, knowingly, recklessly or negligently before that person can be convicted. But when it comes to regulatory crimes, the state need not worry about proving any kind of intent. If it happened, someone's in trouble.

Much the same idea can be seen in traffic offenses. The state doesn't have to prove you intentionally, knowingly or recklessly exceeded the speed limit; they only have to prove that you did it. In traffic cases, however, the worst thing that can happen is your wallet is lightened.

Among the TPPF's recommendations for the upcoming legislative session are the following:

  • Refrain from creating new criminal offenses, especially those regulating non-fraudulent business activities;
  • Eliminate possibility of jail time for first-time conviction of a regulatory misdemeanor;
  • Ensure that an appropriate culpable mental state is included in the elements of offenses; and
  • Amend the Code of Criminal Procedure to allow for citation without arrest for additional misdemeanors and prohibit arrest for regulatory Class C misdemeanors, unless the suspect ignores the citation. 

We don't need to create new criminal offenses in response to every perceived wrongdoing. Not everything that goes wrong is the result of a criminal act. Sometimes, things just happen.

We certainly don't need to find new and creative ways to get more folks ensnared in the criminal (in)justice system. If anything, we need to find ways to keep people out of the courts.

1 comment:

Troy said...

No new criminal laws is a great idea, but in the long run it had better come with making it easier for people to settle disputes between themselves -- otherwise, the push for more criminalization will never end.