Overcriminalization: The Nuance We Need to Properly Address It


Lawyers are generally trained to appreciate nuance. A well-written or well-made argument generally contains a great deal of nuance, so that the judge or jury can see both sides of the story, and yet still find in favor of your client (such is the hope anyway).

But, as in most op-ed pages, you'll find nuance lacking. (In all fairness, you'll find nuance lacking in many blog posts, too. Ours included. We also have a point to make, and blog posts aren't novels.) When you have a point to make, you'll likely skip nuance in favor of piling on the facts or anecdotes that support your side. Such is the case - to some extent - with George Will's recent op-ed for the Washington Post: "When everything is a crime."

Will makes the case for the problem of overcriminalization in the form of our multitude of laws and regulations on the books. It's true that there are a multitude. It's reasonable to view this multitude as a bit of a problem in terms of our justice system and due process. Will cites a few sources as a sort of narrative arc to this story, including Harvey Silverglate's book Three Felonies a Day. To boil it down, Silverglate says that the average white collar professional could theoretically catch three felonies throughout the course of an average day - there are just that many offenses on the books.

But here's the nuance: it's largely theoretical that you'd catch three felonies a day. That doesn't mean what Will argues isn't a problem. Indeed, when prosecutors can set their sights on a target and make use of any of the thousands of offenses to force a plea deal or conviction, that's backwards. And it's a definite problem. We shouldn't deny or minimize that.

But the problem of overcriminalization really lies not in the number of offenses on the books, but in the approach to enforcing them. Here Will does provide some nuance, but it isn't stressed enough. We could definitely do with fewer laws on the books, but what we could do more with is dealing with how those laws are used when prosecutors set their sights on someone they believe is "guilty." Those who are "innocent till proven guilty" should be treated as such - not face a grab bag of offenses that could potentially apply to them if they find themselves subject to the authority of the state.

(Image credit: https://flic.kr/p/be3QkB)

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