# Is America Overcriminalized? **URL:** \ **Category:** Great Debates\ **Created:** [January 7, 2015, 3:34pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227 "2015-01-07T15:34:22Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [January 7, 2015, 7:14pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/21 "2015-01-07T19:14:04Z")
> [@](#): > > This explosion of criminal laws has led to imposing liability on activities that ordinary citizens would have no reason to believe would be criminal such as converting a wild donkey into a private donkey, bathing in the Arkansas Hot Springs National Park without a doctor’s note, and agreeing to take mail to the post office but not dropping it off. > > Read more: [http://www.politico.com/magazine/story/2015/01/overcriminalization-of-america-113991.html#ixzz3OAFqrt6J](http://www.politico.com/magazine/story/2015/01/overcriminalization-of-america-113991.html#ixzz3OAFqrt6J) I decline to believe that the prisons are overcrowded because people are jumping willy-nilly into hot springs in Arkansas. And who’s being denied their Sixth Amendment rights? Regards, Shodan ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [January 7, 2015, 7:16pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/22 "2015-01-07T19:16:26Z")
I find it horrid and barbaric what we do in this respect. I do not believe it helps at all. Yes that person may not commit the crime, but the environment it causes brings about the continuation of the crime at the very least in a karmic sense. It does not go away, and worse, the immoral treatment of prisoners is also a karmic wrong in itself, increasing the crimes committed and increasing the force needed and used to try to control it. And having people’s job of being immoral enforcers of immoral laws is not good for society - hence barbaric. It’s like stopping the flow of a river by shooting water upstream, eventually it will fail because it’s the wrong method and you worsened the condition by your ‘corrective actions’ by adding water that will come back at you. But to many you sure look good at the time doing it and appear to be saving the village that will flood. I do basically support the above reforms, a small step in the right direction. ---
**Author:** ![eschereal](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschereal/32/18939_2.png) [@eschereal](https://boards.straightdope.com/u/eschereal)\ **Post date:** [January 7, 2015, 7:35pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/23 "2015-01-07T19:35:21Z")
US Constitution **Amendment XXVIII** : _Don’t be an asshole._ That should make it easier to clean up the book of excess statutes. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [January 7, 2015, 7:36pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/24 "2015-01-07T19:36:27Z")
> [@Omar\_Little](#): > > Considering he’s aligned with the ACLU and George Soros on this issue, hell might be freezing over for some. > > Holden was quoted in a NYT article back in November: > > [http://www.nytimes.com/2014/11/07/us/aclu-in-dollar50-million-push-to-reduce-jail-sentences.html?\_r=0](http://www.nytimes.com/2014/11/07/us/aclu-in-dollar50-million-push-to-reduce-jail-sentences.html?_r=0) That’s…so weird. ---
**Author:** ![Toastmaker](https://avatars.discourse-cdn.com/v4/letter/t/74df32/32.png) [@Toastmaker](https://boards.straightdope.com/u/Toastmaker)\ **Post date:** [January 7, 2015, 8:19pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/25 "2015-01-07T20:19:09Z")
Much of this question depends on how seriously Americans want to reduce the incidence of crime, particularly the predatory type, in our society. We have lots of it and lots of innocent people pay a huge price for it, in many ways. It appears to me that Americans are not all that serious about creating deterrents to criminal behavior because we are fairly lenient in our criminal justice system when it comes to sentencing as a deterrent. If we were serious, we would have high deterrent sentences like; first time armed robbery - 5 years/ no probation-parole. Any crime of violence with victim injury, but not death - 15 years/ no P or P. . . and on and on - Initially there would be a spike in prison populations with a permanent reduction within a few years as the deterrent effect takes hold in society and we become a people who really send a strong message to criminal predators that we’re not taking it laying down any more. Prison “rehabilitation” is almost a completely laughable concept in today’s penal systems. ---
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [January 7, 2015, 8:22pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/26 "2015-01-07T20:22:00Z")
> [@Omar\_Little](#): > > 😕 Mistype- I meant illegally, and somehow typed “legally”, which you’re right, doesn’t make any sense. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [January 7, 2015, 8:44pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/27 "2015-01-07T20:44:51Z")
I think the authors are referring more to the concept of strict liability with #1. Being guilty of a crime without the mens rea. I’m not sure I support that per se, but I think too many crimes impose strict liability. ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [January 7, 2015, 9:07pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/28 "2015-01-07T21:07:19Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Eh? They’d still be civilly liable. Though I think you misunderstand what the authors are saying. > [@PastTense](#): > > The classic example of Number 1 is vehicular homicide while driving drunk. Clearly the driver did not intend to kill anyone. But you think it is satisfactory that the only punishment is that the guy’s auto insurance is going to pay for the death–since he will be civilly liable–and maybe his rates will go up? > [@Really\_Not\_All\_That\_Bright](#): > > You seem to misunderstand them too. Driving drunk is a knowing, willful violation of the law itself. Yeah, so? Are the existing criminal penalties for that–such as would be applied to someone who was found drunk at a checkpoint, no accident involved–sufficient for the driver who actually kills someone? I don’t think so, not remotely. > [@Bone](#): > > I think the authors are referring more to the concept of strict liability with #1. Being guilty of a crime without the mens rea. That’s right. I disagree, on moral and practical grounds, that a specific mens rea should be required for criminal liability. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 7, 2015, 9:10pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/29 "2015-01-07T21:10:07Z")
> [@Bone](#): > > I think the authors are referring more to the concept of strict liability with #1. Being guilty of a crime without the mens rea. I’m not sure I support that per se, but I think too many crimes impose strict liability. No they do not. For the most part one of the elements of most crimes is intent. Those statutes that do not usually require some type of recklessness or negligence. So I really don’t know what they are saying for #1. The examples given in the article are rare and mostly involve federal fines. 1. No system is perfect. There will be individual’s who overstep their bounds. The appeals process is already there to address that. 2. Miranda happened a long time ago. That is already the law of the land. 3. I somewhat agree. I think there should be minimums in place for most crimes but they shouldn’t be draconian and should be able to give the judge leeway for individual cases. 4. That is not really what the article said. > [@](#): > > Finally, after a sentence is served, we should restore all rights to youthful and non-violent offenders, such as those involved in personal drug use violations. If ex-offenders can’t get a job, education or housing, how can we possibly expect them to have a productive life? And why should we be surprised when more than half of the people released from prison are again incarcerated within three years of their release? That really doesn’t have to do with their rights. It has more to do with employers not wanting to hire convicted criminals. I’m guessing they mean make it so employers can’t know about and use their past actions against them in hiring. That is not restoring rights to anyone. That is granting them new rights. But many (I can’t say all because I don’t know) states have processes to expunge the records of those types of offenders already. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [January 7, 2015, 9:16pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/30 "2015-01-07T21:16:27Z")
> [@Loach](#): > > No they do not. For the most part one of the elements of most crimes is intent. Strict liability crimes do not require intent. That’s what I was saying, I think the authors are arguing against the concept of strict liability. Actus Rea without the Mens Rea. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 7, 2015, 9:17pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/31 "2015-01-07T21:17:50Z")
> [@bump](#): > > Prove it was willful. That’s what any good defense attorney is going to say, and with good reason- plenty of people may underestimate the amount of alcohol they’ve had, either through inattention, inaccurate drink-making, or something else, as well as underestimating its effects- due to food, medications, etc… > > TL;DR- someone could easily legally drive drunk with no intention to break the law. You are basically saying that recklessness or negligence can never be so egregious as to raise to the level of criminal behavior. That would eliminate most manslaughter and negligent homicide and vehicular homicide. I completely disagree. Someone can engage in dangerous behavior which a reasonable person can see will be harmful to those around them without the overall intent of killing or maiming someone. But it should still be a crime. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 7, 2015, 9:18pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/32 "2015-01-07T21:18:35Z")
> [@Shodan](#): > > And who’s being denied their Sixth Amendment rights? SCOTUS has held that the right to counsel attaches in state criminal proceedings only when the defendant is at risk of a prison term. Some states provide indigent representation to all defendants - either because their own constitutions require it or by statute - but most do not. So if you’re a poor person charged with a crime that will only result in a fine, you’re SOL. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 7, 2015, 9:39pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/33 "2015-01-07T21:39:22Z")
> [@Bone](#): > > Strict liability crimes do not require intent. That’s what I was saying, I think the authors are arguing against the concept of strict liability. Actus Rea without the Mens Rea. Those are relatively few. I think you would have to look at the reasons why each individual law is written that way instead of getting rid of all strict liability statutes. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 7, 2015, 9:45pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/34 "2015-01-07T21:45:16Z")
> [@Really\_Not\_All\_That\_Bright](#): > > SCOTUS has held that the right to counsel attaches in state criminal proceedings only when the defendant is at risk of a prison term. Some states provide indigent representation to all defendants - either because their own constitutions require it or by statute - but most do not. > > So if you’re a poor person charged with a crime that will only result in a fine, you’re SOL. You will find that most (can’t say all because I don’t know all states) criminal statutes have at least the _possibility_ of jail time. A lot of traffic offenses too. In our criminal code I can’t think of any that don’t. I know in NJ which is known to have quite liberal laws, the lowest type of criminal offense is called a petty disorderly persons offense. If convicted of a PDP you can be sentences up to 30 days in jail. ---
**Author:** ![ITR\_champion](https://avatars.discourse-cdn.com/v4/letter/i/c67d28/32.png) [@ITR\_champion](https://boards.straightdope.com/u/ITR_champion)\ **Post date:** [January 8, 2015, 4:42am UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/35 "2015-01-08T04:42:15Z")
> [@YogSosoth](#): > > Charles Koch, THE Charles Koch proposed this? I’d have to question his underlying motive then, he’s probably trying to get away with something. Keeping innocent people out of prison and having those guilty of minor crimes not rot behind bars for years? Egad, what dastardly deed won’t this evil genius try next? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 8, 2015, 2:29pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/36 "2015-01-08T14:29:50Z")
> [@Loach](#): > > You will find that most (can’t say all because I don’t know all states) criminal statutes have at least the _possibility_ of jail time. A lot of traffic offenses too. In our criminal code I can’t think of any that don’t. I know in NJ which is known to have quite liberal laws, the lowest type of criminal offense is called a petty disorderly persons offense. If convicted of a PDP you can be sentences up to 30 days in jail. I’m aware of that. However, the prosecutor is free to agree not to seek a custodial sentence. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [January 8, 2015, 3:10pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/37 "2015-01-08T15:10:36Z")
> [@Really\_Not\_All\_That\_Bright](#): > > SCOTUS has held that the right to counsel attaches in state criminal proceedings only when the defendant is at risk of a prison term. Some states provide indigent representation to all defendants - either because their own constitutions require it or by statute - but most do not. > > So if you’re a poor person charged with a crime that will only result in a fine, you’re SOL. And therefore this has nothing to do with prisons, and these statements from the article > [@](#): > > This proliferation is sometimes referred to as “overcriminalization,” which affects us all but most profoundly harms our disadvantaged citizens. > > Overcriminalization has led to the mass incarceration of those ensnared by our criminal justice system, even though such imprisonment does not always enhance public safety. are as nonsensical as the notion that people are being oppressed because they forgot to run an errand to the post office. If they want to advocate ending the War on Drugs, they should come out and say so. Putting in all this stuff that is either drivel or outright false loses sympathy. It reminds me of “hemp” advocates telling me all the things marijuana cures. No, it doesn’t, and when you claim it does it casts doubt on everything else they say. Regards, Shodan ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 8, 2015, 3:14pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/38 "2015-01-08T15:14:50Z")
It has nothing to do with prisons directly, but it’s still quite relevant. Lots of these people are subsequently incarcerated for failing to pay fines or restitution - naturally, they’re generally convicted of whatever offenses they’re charged with since they have no access to counsel. Others will subsequently be incarcerated or sent away for longer terms because their prior no-counsel convictions will trigger sentencing enhancements. ---
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [January 8, 2015, 3:50pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/39 "2015-01-08T15:50:41Z")
> [@Loach](#): > > You are basically saying that recklessness or negligence can never be so egregious as to raise to the level of criminal behavior. That would eliminate most manslaughter and negligent homicide and vehicular homicide. I completely disagree. Someone can engage in dangerous behavior which a reasonable person can see will be harmful to those around them without the overall intent of killing or maiming someone. But it should still be a crime. My point was that drunk driving isn’t always a willful violation; it may be something totally inadvertent. I guess my beef with it is that there’s absolutely NO prevention-oriented effort with respect to drunk driving. Very little education, very little effort on weekend or holiday nights to prevent people from driving drunk. Something’s very fucked up when the “No Refusal Weekend” with blood draws police notifications get more press and publicity than the Tipsy Tow people do. Fundamentally, it’s very hard to tell when you’ve crossed the legal limit because of a couple of things- first, there are too many variables to know accurately where you stand. If you ate, how fast you had your drinks, what you drank, how strong the bartender mixed them, was the whiskey 110 proof or 80 proof, how long has it been, how much you actually weigh, medications you may have taken, etc… Second, who actually has any inkling of what 0.08% BAC actually feels like? I know I sure don’t. It’s some nebulous scary number that’s thrown around with all sorts of dire punishments attached, but nobody really has a fucking clue what 0.08% BAC actually means. The charts say that a 200 lb man can have 4 5% ABV 12 oz beers in an hour and be at 0.7% ABV, but 5 puts him at 0.08%. What if he got 13 oz beers and didn’t know it? What if the beer was 6% ABV and he didn’t know it? Nobody can realistically track that stuff. So there is often zero intention to break the law, just a lot of gray areas, made worse by the fact that alcohol clouds ones judgment. So maybe the vehicular homcide, etc… should be as harshly treated as they are, but the drunk driving itself shouldn’t be quite so criminal, and beyond that, there should be a lot more effort toward prevention than toward punitive measures. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [January 8, 2015, 4:37pm UTC](https://boards.straightdope.com/t/is-america-overcriminalized/709227/40 "2015-01-08T16:37:12Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It has nothing to do with prisons directly, but it’s still quite relevant. Lots of these people are subsequently incarcerated for failing to pay fines or restitution - naturally, they’re generally convicted of whatever offenses they’re charged with since they have no access to counsel. If they are in danger of prison for not paying their fine, then they have the right to counsel according to the Supreme Court, would they not? If it’s “not”, then I will need a cite showing how often it happens. > [@](#): > > Others will subsequently be incarcerated or sent away for longer terms because their prior no-counsel convictions will trigger sentencing enhancements. And since they are at risk of prison, they have the right to counsel according to the Supreme Court, and their Sixth Amendment rights have not been violated. Regards, Shodan [Previous page](https://boards.straightdope.com/t/is-america-overcriminalized/709227.md?page=1) [Next page](https://boards.straightdope.com/t/is-america-overcriminalized/709227.md?page=3)