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ON THE DEFENSIVE: Wisconsin needs to address over-criminalization

By Anthony Cotton

A fundamental principle of the American justice system is individuals should not be subject to criminal prosecution and penalties unless they intentionally engage in inherently wrongful conduct or conduct that they know to be unlawful.

With this principle in mind, the National Association of Criminal Defense Lawyers and the Heritage Foundation, a conservative think tank, finished a long-term study on the dangers of over-criminalization.

The report, called “Without Intent,” found that by the end of 2007, the United States code included over 4,450 federal crimes. Many of these crimes have weak or no mens rea requirements. In response to this study, the House Judiciary Crime subcommittee held a hearing on over-criminalization, but to this day little meaningful reform has occurred.

The obvious danger of over-criminalization is that an increasing number of law abiding citizens will inevitably find themselves subject to criminal prosecution for behavior that is not inherently wrong.

Although the “Without Intent” study focused on the United States code, the same problems with over-criminalization exist here in Wisconsin. As evidence, one need only look at the local county jails and Huber (work release) facilities. So many people are locked up for so many offenses, that most facilities can no longer accommodate the inmates.

In response to these problems, many local sheriffs’ departments have elected to release Huber inmates on electronic monitoring. In some counties, such as Milwaukee, Dane and Winnebago, many Huber inmates will never serve a single day in custody – they will be placed on electronic monitoring and be required to remain in their residences during non-working hours.

The constant ratcheting up of criminal penalties has resulted in unintended consequences and a perverse situation the public is largely unaware of: more people face the prospect of more criminal charges (and with that, longer periods of time in jail), yet fewer people are actually serving that time in a jail setting.

Plainly put, the tight economic climate faced by local governments coupled with the increasingly stiff penalties for many offenses has made it financially impossible to house all of these “offenders” in a Huber facility. Those who have succeeded in advancing the simplistic “tough on crime” approach have done nothing more than reduce the length of time many offenders, actually deserving of jail sentences, spend in a correctional facility.

There are some commonsense solutions that politicians should embrace. First, any new law must be carefully crafted so it contains an appropriate mens rea requirement. This will result in less status crimes and will make it more difficult to prosecute people unless it can be shown the individual intentionally engaged in wrongful behavior.

Second, our legislators need to carefully examine our drug laws. Incarceration (especially when it occurs on an electronic monitoring bracelet) rarely has the deterrent effect that one would hope for.

Moreover, study after study has shown that treatment is a much more cost-effective and meaningful response to addiction than incarceration. The old concept of putting someone in jail and “drying them out” ensures a fixed period of sobriety, but serves very little long-term good. Finally, the public needs to have an honest discussion about whether certain drugs, like marijuana, should continue to be outlawed.

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