It's Way Too Easy to Get Hard Time

With more than 4,000 federal crimes alone now on the books, you'd have to be Mother Theresa not to be in jeopardy at some point

By Ciro Scotti

Years ago when I was a reporter full of sass and vinegar, I persuaded an Upstate New York sheriff to let me spend time in the county jail for a story on life behind bars. The food was great if you like greasy bologna on Wonder Bread, the boredom was palpable, and the company ranged from amusing to psychopathic. Even though it was only a weekend in the felony section of the local lockup, my visit to the inmate subculture was scary enough and mind-numbing enough for a lifetime.

Among the allegedly murderous and larcenous were young men ensnared in the medieval Rockefeller drug laws who actually were looking at a lifetime without liberty for crimes that could be characterized as mildly self-destructive.

That was 28 years ago. On Dec. 7, New York State lawmakers -- after incessant prodding by social critics and celebrities such as hip-hop impresario Russell Simmons -- finally rolled back some of the draconian mandatory sentencing provisions of what have long been among the harshest drug laws in the nation. In the interim, thousands of young lives have been ruined, thousands of families have been rent asunder, and billions of taxpayer dollars have been spent on enforcement, prosecution, and incarceration.


  But the American penal juggernaut goes far beyond drug cases. In 1980, according to the Justice Policy Institute, fewer than 500,000 Americans were in prison or in jail. By the beginning of the new century, well over 2 million prisoners were being held in the U.S. -- a number that included not only the convicted but the accused. According to Justice Dept. figures released in November, the population of those serving time (about 1.5 million at the time the figures were released) continues to rise despite a decade-long drop in the crime rate.

What's going on here? At least part of the answer can be found in a new book from the Cato Institute, a libertarian think tank in Washington, Go Directly to Jail. Cato Senior Editor Gene Healy has compiled a half-dozen essays that make the case that America is subverting the original purpose of criminal punishment -- to exact retribution for serious moral violations -- vastly increasing the likelihood that citizens from all walks of life may someday find themselves in the slammer or at least threatened with incarceration.

"Today, it's possible to send a person to prison without showing criminal intent or even a culpable act -- as when business owners or corporate executives are convicted under the 'responsible corporate officer doctrine' for negligent failure to supervise the acts of their employees," Healy writes in the introduction. "Increasingly, lawmakers are coming to view criminal sanctions as merely another item in their regulatory tool kit."


  Go Directly to Jail identifies three trends that are contributing to the confinement of America: overcriminalization (introducing criminal penalties into essentially civil situations); federalization (creating layer upon layer of federal crimes, duplicating state statutes); and excessive punishment (throwing the book at people for minor infractions). In an essay on the rush to impose hard time, Erik Luna, an associate law professor at the University of Utah, writes that government has come up with "a seemingly endless list of behaviors times appear to fall within a zone of personal liberty that should be outside of the state's coercive powers."

At the top of the list are so-called vice crimes such as drug use or sale, prostitution, and gambling -- personal behavior that is not violent or coercive. But with more than 4,000 federal crimes now on the books -- including "filing an inaccurate monitoring report under the Clean Water Act" -- you'd have to be Mother Theresa not to be in jeopardy at some point.

Healy quotes Lawrence Friedman's History of American Law as saying that the revolutionaries who started this country "identified oppression with abuse of criminal law." In New York and elsewhere, modern-day revolutionaries are pressing governors and legislators to ease the restrictions on personal behavior. And thinkers like those at the Cato Institute are urging Washington to reserve criminality for truly heinous acts. At a mandatory minimum, the public and its representatives should give the activists more of a hearing.

Scotti is a senior editor for BusinessWeek

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