Greetings, Justice Talking readers: happy to be able to join you. Information about the Cato Institute should be directly above. As for me, I'm a recovering lawyer whose policy interests range from executive power to overcriminalization. On the former, see the Cato White Paper (coauthored with my colleague Tim Lynch) Power Surge: The Constitutional Record of George W. Bush. On overcriminalization, some of what I've written can be found here and here.
"Overcriminalization" is an umbrella term for what I see as three disturbing legal trends:
- the use of the criminal law to punish behavior that used to be handled with civil lawsuits or fines, or even to cover behavior that’s just none of the government’s business.
- runaway federalization of crime:Though the Constitution leaves the ordinary administration of criminal justice to the states, over the last four decades, the federal government has increasingly involved itself in local criminal matters, leading to over 4,000 federal crimes on the books.
- The use of heavy-handed criminal law enforcement tactics against people guilty of minor offenses at worst and in some cases people who aren’t guilty of crimes at all.
The criminal law used to be society’s last line of defense—reserved for behavior that everyone recognized as seriously wrong. Now it’s becoming Congress’s first line of attack--a way for legislators to show they’re serious about whatever social problem is currently making headlines, whether it’s drugs, corporate scandal, or email spam. One result of that trend is an incarceration rate unrivaled in the Western world--one that passes even regimes like those in Iran, Cuba, and Russia.
With over two million Americans in jail, many of them for nonviolent offenses, heartbreaking stories are legion. Jonathan Rauch chronicles one of them in his Friday column for the National Journal, Honduran lobster-fleet owner David Henson McNab, currently doing hard time for importing lobster tails that were the wrong size and that were packaged in clear plastic bags rather than in cardboard boxes. McNab and three American seafood dealers ran afoul of the Lacey Act, a federal statute that makes it a crime to import fish or wildlife taken "in violation of any foreign law." McNab and two of the three Americans--citizens with no prior criminal record--got eight years in federal prison.
As Rauch points out, despite his inordinate fondness for the unilateral exercise of executive powers, President Bush has been unconscionably timid in exercising one of the few executive powers that is truly unilateral--the pardon power. McNab and his codefendants would be excellent candidates for a presidential pardon. In an article for the Legal Times, I recommend a few more candidates (none of whom are Scooter Libby...).