America Criminalizes Too Much and Punishes Too Much
When those on parole or probation are included, one out of every 47 adults is under “some form of correctional supervision.”

Not only have we adopted more criminal laws at an astonishing clip, but the punishments our criminal laws carry have also grown markedly. Beginning in earnest in the second half of the 20th century, legislatures began to adopt laws that had, as Judge Jed Rakoff has noted, "two common characteristics: they imposed higher penalties, and they removed much of judicial dis-cretion in sentencing." Notable among these laws were statutes imposing mandatory minimum terms of imprisonment for certain crimes.
Today, sentencing changes like these can propel some sentences into the stratosphere. A defense attorney in Florida told The Economist that, looking at his clients' prison terms, it appeared to him that the United States was conducting "an experiment in imprisoning first-time non-violent offenders for periods of time previously reserved only for those who had killed someone." One of his clients who had been convicted of fraud was sentenced to 845 years. "I got it reduced to 835," the lawyer said with a sigh. A group that looked across state prison systems found "a consistent upward trend in the amount of time people spend in state prisons" and that the "longest prison terms are getting longer." Another group found that one out of every seven of those now incarcerated is serving a life sentence—more people in total than were serving any sentence in 1970. And while crime tends to be a "young man's game," 30 percent of those serving life sentences were found to be over the age of 55.
Thanks to developments like these, the United States is now a world leader when it comes to incarceration. Our incarceration rate is not only eight times as high as the median rate in western European democracies, it is higher than the rates found even in Turkmenistan and Rwanda. As in those of many states, federal prisons have been operating for years around or above 100 percent capacity. And those who emerge from our prisons often confront collateral consequences that haunt them for years—including the loss of voting rights, licenses, public benefits, jobs, and access to housing.
Just how new is all this? For a good portion of the 20th century, incarceration rates in this country were pretty flat—so much so that, as the Georgetown law professor David Cole has explained, some criminologists imagined that they'd always be the same. From the 1940s to the 1960s, the prison population actually decreased. But since the 1970s, it has "mushroomed." In all, more than a million Americans today are behind bars. When those on parole or probation are included, the Department of Justice estimates, one out of every 47 adults is under "some form of correctional supervision."
Nor do the numbers tell the whole story. Much has been written about how, when the number of crimes increases and the punishments they carry grow more severe, respect for criminal law as a whole decreases. As far back as 1967, a presidential commission convened to study the nation's criminal justice system warned that a "substantial cost of overextended use of the criminal process is the risk of creating cynicism and indifference to the whole criminal law." As the late legal scholar William Stuntz once put it, "too much law amounts to no law at all," for "when legal doctrine makes everyone an offender, the relevant offenses have no meaning independent of law enforcers' will. The formal rule of law yields to the functional rule of official discretion."
Take what happened during the COVID-19 pandemic as a microcosm. Before the pandemic, many legislatures across the country adopted laws granting executive officials discretion to declare states of emergency. Many governors, mayors, and others deployed those emergency powers during the pandemic and used them to announce their own new rules. Some observers defended the rules as essential; others questioned them. Either way, the rules often shifted from week to week and from town to town in ways difficult for people to track. In some jurisdictions, people were arrested or criminally charged for doing what at any other time could only be described as "living life." One researcher looked into the practices of a single city and found that one man had been cited for "sitting in front of his home listening to music," another for "being on a city street unnecessarily with two other individuals," and one group for "milling around aimlessly." Many of the targeted individuals were members of less powerful constituencies or minority groups. Government officials targeted churches but not favored businesses. Early in the pandemic, Time pointed to a study finding that "people of color were 2.5 times more likely to be punished for violations of COVID-19 orders than white people."
Much more could be (and has been) said about the hidden costs of expanding the reach of criminal law and the wreckage it can leave behind for individuals, their families, and their communities. But consider just one man's story. As a young man George Norris fell in love with orchids. Eventually, he quit his job as a construction worker with the hope of turning his passion into a living. He worked hard, traveling to Peru, Ecuador, and Mexico in search of exotic plants, building his business slowly over time. Eventually he made a name for himself, collectors increasingly turned to him, and his small business began to flourish. Then one day in October 2003, his life turned upside down.
That day, six federal agents dressed in black body armor and bearing firearms pulled up to his home in three pickup trucks. Two went around the back of the house while another approached the front door. When George opened the door, the agents announced that they were executing a search warrant and swept in, ordering George to sit in the kitchen while an agent watched over him. His wife was out at the time, but a neighbor soon alerted her about the brewing trouble. (Apparently agents had been asking passersby what they knew about "the criminal activity" going on at the house.) When she called her husband, she found him "frightened" and "confused"; "there was no telling what this was about."
Mrs. Norris later testified that the agents "ransacked" their home, dumping drawers full of belongings onto the floor, before carting away 37 boxes of the couple's possessions, including Mr. Norris' computer. It took about five months for the Norrises to learn that George was under investigation for importing orchids without proper documentation. After federal authorities indicted him on seven counts, George surrendered to officials, who placed him in handcuffs and leg shackles—by that point he was 67 years old—and confined him in a cell with three other arrestees. One was suspected of murder, two of dealing drugs. When he told his cellmates he was in for orchids, they erupted with laughter. One quipped: "What do you do with these things, smoke 'em?"
George tried to fight, but the legal bills racked up. Eventually, he changed his not-guilty plea to guilty. "I absolutely hated that," he later said. "The hardest thing I ever did was stand there and say I was guilty to all these things. I didn't think I was guilty of any of them." He was sentenced to 17 months in prison. (The government had asked for about double that time.) He was then and forever labeled a federal felon. He reported to prison in January 2005, was temporarily released while an appellate court heard his case, then returned to prison to serve the remainder of his term. For 71 days, officials reportedly segregated him in solitary confinement (though as it turned out, he was actually with two other inmates thanks to overcrowding). Finally, George was released in April 2007.
"The hardest part," his wife later testified, was that "I lost the man I married. He came home from prison and he ate and he slept and he sat on the couch and looked at the TV, but he wasn't really watching it. It was like having him in a coma, almost. He wouldn't water a plant, he wouldn't call the grandkids, he wouldn't invite a friend over, he didn't want to go out to dinner. Nothing."
The family struggled with their finances, having used their savings to pay for George's defense. George's business was done, his greenhouse abandoned; he simply didn't have it in him anymore. "I don't sleep like I used to; I still have prison dreams," he later told an interviewer. And then in a quiet voice he added, "It's utterly wrecked our lives."
Of course, not every federal felon is like George Norris. Many sitting behind bars are serving time for violent crimes or other conduct that most would recognize as reprehensible. Doubtless, too, new criminal laws are sometimes needed to address new social developments. And surely the federal government has a role to play in the criminal field, including to thwart criminal schemes that cross state lines or to secure fundamental rights protected by the federal Constitution. But are more criminal laws and longer sentences the answers to every problem?
This article is adapted from Over Ruled: The Human Toll of Too Much Law by permission of Harper.
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“people of color were 2.5 times more likely to be punished for violations of COVID-19 orders than white people.”
This sounds like a made-up statistic.
COVID stuff was stupid. But, how many POC reacted to authority with “fuck you” and violence? How many so flagrantly ignored orders that police were called? They may have been 2.5 times more likely to get punished, but were they 2.5 times more likely to violate orders? 10 times more likely to violate orders? Did they violate orders at one-tenth the rate of white people but got punished for doing things white people did and were not punished?
Unless there was some controls on the other variables, this number if meaningless.
Who knows? Skin color is the most important thing.
Someone should do a study on what the crime rate for black families with household incomes of $100k+ is compared to the crime rate of white families with incomes of $100k+. I’d take the bet that the differences are statistically insignificant. Heck, compare “married black households of any income where both adults are employed” to white households of the same definition, probably still similar. Do one better and compare the crime rates of individual people who have no immediate family who have ever been to prison. I would bet cash money that skin color disappears as a variable in that comparison.
It’s obviously not just an income thing, but there’s something wrong with a particular subculture in America wherein everyone drops out of school, has kids outside of marriage, and does drugs and where being unemployed is unfortunate but still socially acceptable. The subculture is primarily (but not exclusively) black. It is this subculture which commits virtually all the crimes in society.
Too true! Thomas Sowell wrote about this kind of thing in his books. Too bad his books weren’t more widely read. I was quite disappointed when I took one of his books to the used book store, and they didn’t even want to buy it from me.
Maybe so but with 75% of black children growing up with no father in the “home” leaving only the baby momma who herself is in no way any position to raise children except for welfare/EBT and free rent.
Then you end up with males committing multiple felonies, even while waiting for trial for previous felonies.
Chicago to date:
shot and killed: 323
Shot and wounded: 1534
total shot: 1857
total homicides: 368
Is that an excuse for their situation or just a description? Nobody is forced into these crimes, they’re chosen because it’s easy money and acceptable to their peers.
Someone did that study –Ogbu, I think, and got in a lot of crap over it.
Because the differences were NOT “statistically insignificant”.
It kinda threw the whole ‘if only they had equal opportunities’ argument out the window.
Ogbu didn’t study crime at all. You can read his actual study on academic achievement among minority groups here, a study which only partially touched upon black americans as one such involuntary minority group (the study compares voluntary and involuntary minority communities in multiple countries). The basic thrust of it is that minorities which choose to immigrate to a place tend to work very hard to adopt the success standards of their new home (or have already adopted them, that’s why they came) while involuntary minorities who have a high chance of facing discrimination as adults for historical reasons purposefully reject the norms and success standards of the majority cultural group as a type of identity and method of coping. It’s a very big-picture broad strokes way to look at what culture people see themselves as a part of, or aspire to be a part of.
That’s kind of related, but not the same thing to what I’m talking about. I’m talking about if you pick a random person out of a hat, correctly identify whether they are a member of the Subculture of Failure (I’m just going to call it that) and then line that up against their likelihood to be arrested for a crime at some point in their life. Surely, an unseemly portion of black people selected at random probably do fit smack dab into the middle of that Subculture of Failure, but the ones that don’t, I’m willing to bet their rates of criminality are virtually identical to their nonblack counterparts.
It may sound like a made-up statistic to you but it’s not. The study generating that result did in fact control for all the things you’re whining about.
Skin color is not “the most important thing” but it is still sometimes a thing. More to the point, the covid abuses were perpetrated most strongly by “liberal” politicians who make great political capital by claiming to defend the very people they actually oppressed.
Today we have laws preventing the unwashed masses from blowing upon a cheap plastic flute without the permission of ours betters!
To find precise details on what NOT to do, to avoid the flute police, please see http://www.churchofsqrls.com/DONT_DO_THIS/ … This has been a pubic service, courtesy of the Church of SQRLS!
Tomorrow, The Sacred Laws will outlaw questioning the “Stolen Erection Theory”! Hey, you, skeptic one! YOU, Person XYZ, will replace “Pence”, and we shall all chant, “Hang Person XYZ”!
On the other hand, some people just never learn:
https://cwbchicago.com/2024/08/man-carjacked-driver-while-wearing-ankle-monitor-for-two-felony-gun-cases-prosecutors.html
https://cwbchicago.com/2024/08/six-years-carjacking-driver-wearing-ankle-monitor-chicago.html
https://cwbchicago.com/2024/08/man-who-viciously-whipped-80-year-old-with-belt-is-arrested-for-3rd-time-in-4-days-officials.html
https://cwbchicago.com/2024/08/north-side-burglar-cut-off-ankle-monitor-and-started-committing-burglaries-again-prosecutors-say.html
I wonder if there is any correlation between crime rates and municipal corruption.
Or as James Madison once put it, “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read.”
My solution is to separate punishment from public safety.
* Make all verdicts restitution only, money, and include every expense incurred, including “intangible harm” like emotional distress, pain and suffering, loss of companionship. Too amorphous for your tastes, Mr Criminal? Then don’t do the crime.
* If you don’t pay your verdict debt, you become an outlaw who cannot complain for any crime whose value is less than what you owe. Your victims, your neighbors, bounty hunters, everybody, can steal from you as long as the theft is less than your outlaw debt.
* If that outlaw debt is high enough, they can beat you up, kidnap you, torture you, kill you — as long as the restitution for their crime would be less than your outlaw debt.
* For civil “servants” who violate laws, obfuscate regulations beyond comprehension, miss FOIA deadlines, and similarly abuse their own rules, tar and feathers becomes a very real possibility, as long as the damages (ruined clothes) are less than the damages their victims could get for delayed projects, lies about broken taillights, and whatever other Stupid Government Tricks they pulled.
Monopoly government sucks.
Or bring back exile.
So Jeff Bezos can lean out of his limousine and spray crowds of people with an uzi because he can pay the restitution cost?
Is the contention that the people serving life sentences were convicted unjustly or the sentence did not fit the crime they were convicted of? If not, the number of people serving life sentences is a statistic that does not matter. Frankly, such is the same with any other convicted. Most of these would have to be judged on a case by case basis, or at least a category of crime basis. For instance, the person convicted of fraud who got 845 years. Without any context to what he was convicted of, there is no basis for judgment on whether the sentence was deserved or not. Part of what got us here was abuse in judicial discretion in sentencing which allowed repeat offenders to circulate back out into public, that legislature took away because it was causing harm to the public.
And this example of the dangerous orchid importer going to prison goes right back to victim prosecution.
Let’s assume government still passes stupid laws like whatever he was charged with, but enforcement is entirely up to the victims. Wouldn’t that be nice! Who exactly would the victims be, other orchid growers and importers?
And what would their search warrant bet be? First off, if they are looking for illegal orchids, that’s all they can search for. No financial records; that’s self-incrimination. No computer, no 37 boxes of “possessions”, just the orchids. And whoops, they’d have to prove he imported them. Where’s that evidence? If they’d spent months investigating him, why didn’t they impound the orchids as they were being imported? Why wait until the chain of custody had been broken?
The end result would not only be acquittal, but loser pays would put ALL the expenses on his accusers — all the court costs, all his defense costs, all the profits from his ruined business including plausible future income, everything he spent because of their false accusations.
Monopoly government sucks.
Or, why didn’t they just send him a registered letter detailing what parts of the required paperwork were missing. There’s no indication he even knew he’d done anything wrong until the cops showed up, and it took him months afterward before he found out what it was. And asking neighbors if he knew about his criminal activity when he didn’t even know it himself? That’s just deliberately messing with his reputation.
Good point. They went out of their way to mess with him just for the thrill.
It’s like drug busts. Instead of SWAT teams rolling up in “tanks” (as the media like to call them) and busting down doors of suspected drug dealers, station cops around the house to catch everyone trying to leave, then announce with a bullhorn that they will be serving a warrant to search for drugs in, say, 5 hours. At the appointed time, go ahead and come up with body armor and all that, but knock politely and wait a few minutes.
If they find the drugs, great, mission accomplished, drugs are out of circulation (until they disappear from the evidence locker) and they can make their bust.
If they don’t find any drugs, then either they got the wrong house, they apologize and pass out ice cream coupons, clean up whatever mess they left behind, and no one hates them, even if they are pissed off.
Or the bad guys flushed all the drugs down the toilet, and now they owe someone a lot of money with no product to sell. Problem solved without ever going to court. Save money in court, save money in locking them up, and they druggies just might be taken care of by other bad guys who can now be investigated for murder.
Nope. They want the thrill of power.
I would favor life sentences for the idiots who imported pythons into Florida, but this story sounds incomplete. Did the government explain why unlicensed importation of orchids was so dangerous?
Because if they didn’t ban new importers, then old importers would stop bribing them to ban new importers.
Supposedly the exporter in Peru (who was also arrested) was taking critically endangered wild varieties, labeling them as ordinary orchids on the customs form, and mailing them to the orchid guy.
Governments have long since misclassified “endangered” because it’s more profitable. If they grow in the wild, exactly how endangered are they?
A lot of plant importation laws are for reducing the risk of introducing pests or diseases which can decimate crops or native plants.
You know it is bad when you criminalize asking for legal advise or making legal expenses felonies for booking as legal expenses.
Oh wait.
No idea what you’re talking about.
— Reason
That is one way to streamline the courts, not going to do much about the prison population but the trials will be swift and certain.
It happened 34 times!
That didn’t happen and it’s good that it did.
Also Reason.
Paying your lawyer to pay hush money to someone is not a legal expense or a campaign expense, it’s money laundering.
I wonder which is
worsemore dangerous, illegally importing orchids or having your accountant make a ledger entry in a non-government-approved location.I do think our country over criminalizes things, but part of the reason is that law enforcement is much better at their jobs now than in the past, much of that is because of DNA testing. When was the last time you heard of a serial killer on the loose? Back in the 70s and 80s there was always at least one active in the news all the time.
Yes, we incarcerate a lot more people than back in the 70s, at the same time, violent crime is way down compared to the 70s. But we could do better with victimless crimes, like when a billionaire takes out a loan from the bank that he paid back, or mislabels personal payments to a porn start.
The article should have given more context over the orchid guy, he was arrested for buying critically endangered orchids from Peru, and the supplier was mislabeling the shipments as ordinary varieties. Who knew that the Bush administration was prosecuting environmental laws so zealously?
Thanks for explaining what the orchid charge was about.
You are full of shit.
Take a gander here at FBI crime stats from 2017 (pandemic+ stats are all out of whack but you are free to find and post them on your own dime). Look at those lousy clearance rates.
The truth is cops are in the business of rewarding themselves with stolen cash and property in civil asset forfeiture. They don’t give a rat’s ass about solving crimes because that is not what they are paid to do. They are paid to (a) keep the peasants in line, and (b) raise money.
And if they seize drugs too, great, another way to raise money, on a more personal level.
I don’t know. Seems like a bit of a stretch to attribute to police competence the apparent lack of high profile serial killers.
“law enforcement is much better at their jobs now than in the past.”
Maybe, marginally,? But their current stats suck:
https://www.statista.com/statistics/194213/crime-clearance-rate-by-type-in-the-us/
Convicting MORE people in aggregate ≠ “much better at their jobs.”
Convictingconvincing MORE people to plead guilty instead of go to trial in aggregate ≠ “much better at their jobs.”FIFY
Exactamundo.
Bernie Madoff was a non-violent first offender, but he deserved his 75-year sentence for such a huge, destructive fraud. I gather he was also uncooperative with efforts to investigate the fraud and recover some of the losses.
But if you don’t have people on parole or probation, then you can’t find ways to give them violations, so you can’t keep them on parole or probation, thus you cannot bilk them for more money. That is the business model for states and local districts. Not to mention all the contracts they have with testing facilities and companies, evaluation entities, etc. It is a business, and convicting people and keeping them in the system is the model.
Ayn Rand was always a bit wordy.
‘Before the pandemic, many legislatures across the country adopted laws granting executive officials discretion to declare states of emergency.’
Remember when they told us how the power to declare emergencies was only a bureaucratic shortcut to allocated resources and spending?
‘Many governors, mayors, and others deployed those emergency powers during the pandemic and used them to announce their own new rules. Some observers defended the rules as essential; others questioned them. Either way, the rules often shifted from week to week and from town to town in ways difficult for people to track. In some jurisdictions, people were arrested or criminally charged for doing what at any other time could only be described as “living life.”‘
I guess they lied.
What would be better? How about fewer identified crimes, clearly defined consequences, and consistent and strict enforcement? After that, let private parties deal with endless regulatory issues. And convince Americans that liberty is better than living in a nanny state, like we believed in the past.
“Show me the man and I’ll show you the crime.”
https://www.oxfordeagle.com/2018/05/09/show-me-the-man-and-ill-show-you-the-crime/
At least karma prevailed, and Beria finally got his! When will today’s power pigs finally get theirs? Their justice, I mean, I know that they already get paid waaaay too much…
No longer nervous about law enforcement showing up, Smash ‘n’ Grab looters operate at a leisurely pace before loading up the Escalades out front.
A criminal justice system that worked fine for heritage Americans is wholly unsuited to primitive Africans and South Americans.
Contributing factors
1. War on Drugs
2. Privatisation of prisons
3. Belief that only other people get caught up in a gubmint net
4. “Law and order” being a generally successful election platform
Agreed!
Underlying all 4, especially #3, is self-righteousness! SURELY Government Almighty KNOWS that ***I*** am one of the GOOD guys!!!
When I have been a juror (during selection), I have been surprised at how long-winded, great efforts the defense lawyers go to, to countermand the idea in the heads of just about EVERYONE, that merely being accused by Government Almighty, of some so-called “crime”, is NO proof of ANYTHING!!!