Criminal Codes Gone Wild

On September 28, 2010, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, held a hearing entitled, "Reining in Overcriminalization: Assessing the Problems, Proposing Solutions." The hearing was designed to heighten the dialogue around overcriminalization and review the process by which federal criminal laws are enacted.

Overcriminalization describes the trend in our justice system of attaching criminal penalties to conduct that should not be categorized as criminal.

The panel featured two victims of overcriminalization, two legal scholars on the issue, and special interest groups that represented the spectrum of concern on this issue — including the Heritage Foundation and the National Association of Criminal Defense Lawyers.

Our system rests on a few very basic ideas around retribution and deterrence. We all agree that if someone commits a crime there should be consequences. But should those consequences necessitate criminal penalties or jail time? The witnesses argued that it should not, especially when it relates to unclear regulatory enforcement. Although the ACLU's overcriminalization efforts focus on the issue of criminalizing low-level and nonviolent violations in ways that disproportionately impact minority communities, our goals are aligned: when penalties for any crime seem to be disproportionate to the crime, are inconsistently applied, or come as a result of unclear laws, we have a broken system.

Consider the case of Robert Unser, who set out for a snowmobile ride one day in the Colorado Rockies when he suddenly found himself caught in the middle of a blizzard. He searched for cover in the freezing darkness and, after traveling miles and hours, was finally able to find shelter in a small embankment. After the storm passed, he began to try to make his way home and by chance or miracle, discovered a barn with electricity and was rescued. He spent a month recovering from frostbite, hypothermia and dehydration.

After his recovery, he reached out to the New Mexico deputy sheriff who directed him to the United States Forest Service to try to reclaim his snowmobile. He met with park officials and recounted the events but was surprised to later learn that a federal investigation had begun because, it turns out, Unser broke the law by driving through an unmarked wilderness zone. In spite of officials' full knowledge of the emergency circumstances, prosecutors charged Unser with a felony federal charge of operating a motorized vehicle inside of a national wilderness area — a crime that carried a maximum penalty of $5,000 and six months in prison.

Unser was convicted of this violation and now lives with the stigma of being a felon due to laws former judge and Subcommittee Ranking Member Louie Gohmert (R-Texas) characterized as "obscure and cumbersome regulations."

The hearing centered on explaining how we reach these seemingly unimaginable outcomes. All of the panelists agreed that convictions based on murky laws create a wasteful and counterproductive system.

Without action from Congress, cases like Unser's and similar disproportionate criminal convictions will continue to clog our courts and jails, resulting in fewer resources to pursue real crimes.