While hearing a California-based case fascinating on its own merits, Supreme Court Justice Neil Gorsuch raised a side issue of perhaps even greater importance, one which rightly unites reformers from across the political spectrum.
The case was about when police in “pursuit” of a suspect can be allowed to enter the suspect’s property without a search warrant. It’s an issue involving many layers of law and logic, one worthy of close attention.
Also well worthy of attention, though, is the side issue raised by Gorsuch. It is a favorite topic of his, one which reporters and analysts have associated with him for years. It also is one to which we at the Washington Examiner have returned repeatedly while advocating some of the same sorts of reforms Gorsuch seems to suggest are necessary.
The issue, the problem, is called “overcriminalization.”
“We live in a world in which everything has been criminalized,” Gorsuch said during the Wednesday oral arguments in the case called Lange v. California. “And some professors have even opined that there’s not an American alive who hasn’t committed a felony in some — under some state law.”
It’s not just state law. Distinguished civil liberties attorney Harvey Silverglate wrote in his 2009 book, Three Felonies a Day, that so many niggling federal regulations carry criminal penalties for violations that even the most careful of citizens technically commit that many “crimes” in their quotidian lives without even realizing it. In 2010, the traditionalist Heritage Foundation published One National Under Arrest (I contributed a chapter) lamenting the same problem, one described by Reagan-era Attorney General Ed Meese as “far too many criminal laws … creat[ing] traps” that “make criminals out of those who are doing their best to be respectable, law-abiding citizens.”
There were the seafood merchants forced to serve eight-year prison terms for importing a small percentage (in terms of their whole harvest) of lobsters with tails too short and for wrongly packaging them in plastic rather than the required cardboard containers. There was the kindly, would-be clean-energy inventor imprisoned for supposedly “abandoning” semi-hazardous waste that, in truth, had been carefully saved, sealed, and stored with a friend. There was the elderly orchid enthusiast convicted for paperwork violations involving imported plants. And the county commissioner convicted for “possessing” a firearm in his house in Alabama while smoking a marijuana joint on a Florida beach. And many, many more such tragic tales, often involving federal agents busting into locations with guns drawn despite the alleged infractions being entirely nonviolent.
Because of all these horrible but true stories, the effort to curb overcriminalization is one where law-and-order conservatives such as Heritage join rightist libertarians such as the Mises Institute, left-libertarians such as the American Civil Liberties Union, along with traditional business interests and liberal professional associations such as the American Bar Association.
As Gorsuch wrote in a concurring opinion in 2018, the voluminous federal code contains so many provisions carrying criminal penalties that the laws “invite the exercise of arbitrary power … by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.”
In the case argued this week, Gorsuch’s point was that the Fourth Amendment’s ordinary requirement for a search warrant should apply to most of this huge volume of technically criminal but nonviolent, suspected infractions, while leaving exceptions only for police in hot pursuit of people suspected of truly violent crimes. His unstated point, though, was broader: Too many thousands of obscure laws carry too many criminal penalties, period.
Legislatures from coast to coast, and in the U.S. Capitol, ought to take the hint.
