How many laws did you break this week?
For those Coloradans who consider themselves “law-abiding” citizens, here is a question: How do you know? In the book “Drug War Addiction,” San Miguel County Sheriff Bill Masters describes his discovery of the Colorado Statutes of 1908, “All of the laws of the state fit into one volume. Murder, rape, assault, stealing, and trespassing were all against the law in 1908.” Today, Colorado has more than 30,000 laws. Several dozen – out of the several hundred new laws passed in 2005 – went into effect July 1.It is now a crime in Colorado to buy more than three packs of cold medication, such as Sudafed, at one time.This drastic increase in the quantity of laws has failed to put an end to the crimes from 1908. Indeed, as Sheriff Masters puts it, today, “lawlessness is commonplace, even in vogue.” Worse yet, the citizen going about his or her business, cannot reasonably know what is, and what is not, against the law.Having lawlessness “in vogue” is a logical outcome of over criminalization. In the Cato Institute book “Go Directly to Jail: The Criminalization of Almost Everything,” author James V. DeLong writes, “When the government criminalizes almost everything, it also trivializes the very concept of criminality.”As described in “Go Directly to Jail,” there are now more than 4,000 federal crimes filling some 27,000 pages of the U.S. Code, including violations of the regulations expressed in the tens of thousands of pages of the Code of Federal Regulations. In other words, while you are trying to comply with state law, you may well be breaking a federal law. At its inception, criminal law required both actus reus – the guilty act – and mens rea – a guilty mind, or intent. The fundamental nature of a crime also required conduct recognized by society to be inherently wrongful – malum in se – and, in some sense, immoral. But criminal law has been widely expanded into conduct that is illegal not because of its intrinsic nature but because it is a prohibited wrong – malum prohibitum, or “public welfare” laws. These crimes are created by legislative declaration in pursuit of some perceived public good. For instance, as of July, it is illegal in Colorado for new teen drivers to carry any teen passengers, other than siblings, for the first six months, and only one passenger during the next six. This is behavior completely lacking in any inherent criminality. Legislators have become far too comfortable with public-welfare lawmaking. The year 2005 found the Colorado Legislature debating statewide smoking bans, primary seat belt laws, and the mandating of time off for private sector employees to attend their children’s school activities. Looking to the free market or a private cause of action, or even questioning if some behavior is the government’s business in the first place, has given way to the police powers of the state as the answer to most problems, real or perceived.In 1985, the Colorado Legislature doubled the maximum penalties for felony crimes, and Colorado’s prison population quickly doubled. Punishing felons is perfectly fine, but what constitutes a felony has also changed. In April, police arrested more than 20 consenting adults in a Palmer Lake restaurant on misdemeanor gambling charges for playing small stakes poker. The restaurant owner, Jeff Hulsman, faces the felony charge of allegedly running an illegal gambling operation. The investigating officer told the Colorado Springs Gazette that it was a complex case because, “We were uncertain whether it was legal or not.” You would think a crime for which a person can be ruined for life would be clearly defined and obvious to those who enforce the law.University of Tennessee Law Professor Glenn Reynolds, writing for Tech Central Station, notes that “if you haven’t been convicted of some felony or other, it’s probably because no prosecutor has tried to put you away, not because you haven’t committed one, whether you realized it at the time or not.”A criminal code that regulates nearly everything gives enormous discretionary power to government to pick targets it thinks are appropriate rather than offenses that need to be prosecuted. And the biggest loser is the rule of law itself. Mike Krause directs the Justice Policy Initiative at the Golden-based Independence Institute. Chelsea Johnson attends Cornell University and is a summer intern at the Institute.
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