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America, Land of the... Prosecuted

Published: 2010-08-22
Author: Patrick J. Artur & Associates
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Synopsis: U.S. prisons have filled with more than murderers rapists and violent gang members. While attempting to take a bite out of crime has become a bipartisan pastime, America's prisons have filled with more than murderers, rapists and violent gang members.

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While attempting to take a bite out of crime has become a bipartisan pastime, America's prisons have filled with more than murderers, rapists and violent gang members.


As crime rates continue to serve as a hot-button political issue, campaigners have increasingly held a "get tough on crime" stand. While attempting to take a bite out of crime has become a bipartisan pastime, America's prisons have filled with more than murderers, rapists and violent gang members. According to The Economist, there are currently approximately 200,000 inmates over the age of 50; this is roughly the total number of prisoners of all ages in 1970.

Prison is expensive. To house the state's incarcerated population, Pennsylvania taxpayers annually pay approximately $33,000 per inmate.

Even so, one in 100 American adults (including one in nine young black men) are behind bars. By way of comparison, The Economist reports that despite similar criminalization trends in other rich nations, the incarceration rate in Britain is one fifth of America's and the rate in Japan is one twelfth.

Legitimacy of Legislation

To illustrate the extremities of criminalization, The Economist relays the story of four Americans charged with importing lobster tails in plastic bags rather than cardboard boxes. This amounted to a violation of a Honduran regulation no longer enforced, yet the Americans were sentenced to eight years each under a law originally intended to keep Americans from poaching in other nations.

Laws are valuable to the extent that society accepts their legitimacy; when citizens disregard the law at will, or even inadvertently, it undermines the legal system. The element of criminal intent is disappearing from legislation and agency regulations. Boston civil-liberties lawyer Harvey Silverglate titled his recent book "Three Felonies a Day," referring to his estimation that the average American unwittingly commits three crimes a day because of vague laws.

Unclear cybercrime laws open the door to prosecution for acts as innocent as hosting a website that links to a site with links to another site containing illegal content. Some laws allow for multiple prosecutions for acts as fleeting as sending an e-mail to multiple recipients through the use of a distribution list. An anti-cyber-bullying bill is on the table that would make it a crime to use the Internet to "coerce, intimidate, harass, or cause substantial emotional distress to a person." While undesirable, the legislature has never found a need or ability to criminalize these broad categories of acts with regard to written or oral speech.

Diverting Resources

With America's violent crime rate up from 40 years ago despite these legislative changes, the current use of government resources to address these crimes may warrant a second look. Take, for example, the case of Pennsylvanian Bruce Shore, who sent complaint e-mails to Senator Jim Bunning of Kentucky. When signing off, Shore changed his first name from Bruce to Brad and his hometown from Philadelphia to Louisville in order to get the Senator's attention. He was indicted under a federal e-mail harassment statute.

Devoting law enforcement resources to policing those exercising their First Amendment rights or prosecuting vague and obscure offenses diverts efforts away from serious, violent criminal acts. Compounding the issue, many statutes have mandatory minimum sentences, which strip judges of their discretion to show leniency even when warranted.

According to The Economist, America's rate of incarceration has quadrupled since 1970. The National Institute of Corrections says that in 2007, throughout Pennsylvania's 67 counties, there were 74 jail facilities with a combined rated capacity of 36,293 inmates.

Following Philadelphia

Concern for public safety and welfare does not mean incarceration rates must be so high. For example, despite an increase in the use of noncustodial sentences in the Netherlands, crime rates have fallen. In Philadelphia, city law enforcement officials made a unified commitment to reducing the jail population. After taking a variety of measures, the jail population in June 2010 was about 8,100, down from more than 9,800 in January 2009, according to Deputy Mayor Everett Gillison. The drop has reportedly saved the city around $9 million.

Drawing politicians away from campaigns founded on fear is proving a difficult trend to resist. However, sensibility should prevail when enacting and enforcing laws, and consideration should be given whether certain acts should be regulated and not criminalized. Those who have been arrested under draconian laws or charged with violations of obscure crimes should immediately contact a criminal defense lawyer to protect their interests in negotiations and at trial.

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