Freedom Discussions

The Crime of Living

by Wendy McElroy

The new term ‘overcriminalization’ describes the last few decade’s legislative orgy of criminalizing trivial or harmless behavior. From 2000 to 2007, Congress added 452 new federal crimes to the 4,450 some already in effect and the approximately 300,000 regulations that can be enforced criminally.

Confronted by a powerful coalition — ranging from the conservative Heritage Foundation to the liberal American Civil Liberties Union – a Congressional committee is currently scrutinizing the legal morass and needless suffering that Congress itself has been instrumental in creating. For decades, ‘get tough’ punishments and innovative new crimes brought career-making headlines to politicians who encountered little resistance.

Under ‘zero tolerance’ the legal system has shifted ever closer to a vast police state. Traditionally civil offenses now resemble criminal ones in their punishment; for example, it is commonplace for imprison ‘deadbeat dads’ who can not pay child support for civil contempt of court. Even children are not exempt. Petty offenses such as sexting between teens are felonies and can be severely punished; in grade schools, police are sometimes called to control children who throw temper tantrums. Everday life has been criminalized.

The book “Three Felonies a Day: How the Feds Target the Innocent” by libertarian attorney Harvey Silverglate details how you are a felon right now because it is virtually impossible to go through one day without violating the law repeatedly.


Congress’ new willingness to focus on ‘the problem’ of overcriminalization may not be humanitarian.

The U.S. Bureau of Justice Statistics states that “in 2008, over 7.3 million people were on probation, in jail or prison, or on parole at year-end — 3.2% of all U.S. adult residents or 1 in every 31 adults.” 92,854 others were held in juvenile facilities according to the 2006 Census of Juveniles in Residential Placement.

In 2008, the cost of imprisonment was estimated to be $15,000 per inmate. In the crushing grip of recession, America cannot afford to feed, clothe, house and administer all the justice it metes out.

Some states now give judges cost-of-sentence guidelines to use while deliberating. The Washington Independent reports of the guideline given to Missouri judges, “For someone convicted of endangering the welfare of a child, for instance…a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber…would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.”

Whether from economic necessity or a bout of common sense, legislators are giving a nod to the negatives of overcriminalization. These include: the mis-allocation of resources; the vesting of widespread discretion in police forces who abuse it with impunity; and, the decimation of the civil liberties of an accused, including the extraction of plea bargains from innocent people who are threatened with life-destroying prison terms.


Abner Schoenwetter, formerly a Miami seafood importer, chose to fight. In 1999, he was accused of buying lobster tails from a long-time supplier; the purchase allegedly violated harvest regulations in Honduras. Among the violations: the lobsters were in plastic bags rather than cardboard boxes. Schoenwetter provided American prosecutors with evidence from Honduran officials that no law had been broken; the Attorney General of Honduras filed a friend of the court brief, stating that the cited regulations had been voided. Despite having no prior record,, Schoenwetter was convicted and served 6 years in prison. Now released, the ‘convicted felon’ is without a job to support his ill wife and faces possible eviction from his family home.

The Heritage Foundation and ACLU have chosen Schoenwetter to testify before the Congressional committee as the ‘face’ of those brutalized by overcriminalization. A good man with no criminal intent who has lost the fruits of a lifetime due to the zealous application of Kafkaesque regulations.


I do not believe that anything short of eliminating the current Justice System and establishing one on free market principles will bring true justice. But certain practical steps could greatly alleviate the suffering of the law’s innocent victims. They include:

**eliminate the ability of civil judges to imprison debtors on contempt of court
**re-establish the need to prove “criminal intent” for criminal charges
**cease to prosecute victimless crimes, like drug use and consenting sex between adults
**eliminate prosecutorial immunity for corrupt or excessive prosecution
**enforce Constitutional protections such as “the presumption of innocence”
**make all courts, including family ones, transparent

Overcriminalization threatens everyone. It does not matter how peaceful or law-abiding you mean to be. Today you are a criminal. Tomorrow you may be a prisoner.