Decriminalize the Average Man

If you reside in America and it is dinnertime, you have almost certainly broken the law. In his book Three Felonies a Day, civil-liberties lawyer Harvey Silverglate estimates that the average person unknowingly breaks at least three federal criminal laws every day. This toll does not count an avalanche of other laws — for example misdemeanors or civil violations such as disobeying a civil contempt order — all of which confront average people at every turn.

An article in the Economist (July 22, 2010) entitled "Too many laws, too many prisoners" states,

Between 2.3m and 2.4m Americans are behind bars, roughly one in every 100 adults. If those on parole or probation are included, one adult in 31 is under "correctional" supervision. As a proportion of its total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan.

By contrast, in 1970, less than one in 400 Americans was incarcerated. Why has the prison population more than quadrupled over a few decades? Why are you, as an average person and daily felon, more vulnerable to arrest than at any other time?

There is a simple answer but no single explanation as to how the situation arose or why it continues to accelerate out of control. The answer: a constant flood of new and broadly interpreted laws are criminalizing entire categories of daily life while, at the same time, the standards required for arrest and conviction have been severely diluted. The result is that far too many people are arrested and imprisoned for acts that should not be viewed as criminal at all or should receive minimal punishment.

In some cases, the violated laws are so obscure, vague, or complicated in language that even the police are ignorant of them. In other cases, outright innocence is not sufficient to escape the brutality of detention.
Some Sample Cases

(Note: the following examples are selected to illustrate the wide range of criminalization that is occurring and so their circumstances differ significantly from each other. Nevertheless, they share certain factors: the criminalization of harmless, trivial acts; the enforcement of unreasonable rules; the severity with which any noncompliance is punished; the indifference to the human devastation wrought by law.)

In 2005, while a passenger in his family car, Anthony W. Florence was mistakenly arrested for a bench warrant on traffic tickets he had already satisfied; the proof of payment he carried was to no avail. During seven days in jail, Florence was strip-searched twice, even though the guards admitted they had no reasonable suspicion of contraband. He was otherwise deprived of rights; for example, guards watched him shower and forced him to undergo a routine delousing.[1]

Eventually released, the attempt to get justice has taken Florence years. On October 12, the United States Supreme Court is scheduled to hear Florence v. Burlington, et al., in which the question is "whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances."[2]

According to his lawsuit, Florence is joined by people who were similarly treated after being arrested and jailed for such crimes as "driving with a noisy muffler, failing to use a turn signal, and riding a bicycle without an audible bell."Download PDF

In 2003, "three pickup trucks" with "six armed police in flak jackets" pulled up to 66-year-old George Norris's house in Texas.

Norris was detained for four hours while they ransacked his home and confiscated 37 boxes of possessions without offering a warrant or an explanation. In March 2004, Norris was indicted under the Convention on International Trade in Endangered Species for "smuggling" the orchids he had ordered and paid for to run a side business. Norris was thrown into the same cell as a suspected murder and two suspected drug dealers.[3]

The Economist reports,

Prosecutors described Mr. Norris as the "kingpin" of an international smuggling ring. He was dumbfounded: his annual profits were never more than about $20,000. When prosecutors suggested that he should inform on other smugglers in return for a lighter sentence, he refused, insisting he knew nothing beyond hearsay. He pleaded innocent. But an undercover federal agent had ordered some orchids from him, a few of which arrived without the correct papers. For this, he was charged with making a false statement to a government official, a federal crime punishable by up to five years in prison. Since he had communicated with his suppliers, he was charged with conspiracy, which also carries a potential five-year term.

Unable to pay legal bills, Norris pleaded guilty and was sentenced to 17 months. For bringing prescription pills into prison, he was thrown into solitary confinement for 71 days. But "[t]he prison was so crowded … that even in solitary he had two room-mates."

In 2000, a poor kid from foster care named T.J. Hill thought he had found a path to success when he received a wrestling scholarship to Cal State Fullerton. School did not work out, and he was arrested in 2006 for possession of psilocybin (mushrooms).

He was put on five years' probation with a suspended imposition of sentence. In other words, if he completed his probation successfully, he would not have a criminal record.[4]


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