Outside the Beltway

Three Felonies a Day

Is it "impossible for men to live without breaking laws"?

James Joyner · Tuesday, October 20, 2009 · 1 comment

Radley Balko argues we are now seeing the fruition of Ayn Rand’s fear that government would eventually declare “so many things to be a crime that it becomes impossible for men to live without breaking laws” in order to extend its power.

Part of the drop can of course be explained by mass incarceration—America leads the world in the percentage of its population behind bars. Putting one in every 100 citizens in jail causes its own problems, and there’s plenty of debate over just how much that incarceration has contributed to the fall in violent crime. But there’s no question that we’ve put lots of people in prison over the last 20 years, the crime rate has fallen, and part of the public likely believes (with some justification) that there’s a link betweent the two.

But there’s something else going on too, picked up in the blogosphere last week by George Washington University political science Professor John Sides. According to Gallup, since 2002 the percentage of the American public who think violent crime is on the rise has been increasing, even as actual violent crime rates continue to fall. Sides notes that from 1989 to 2001, perception and reality somewhat went hand in hand. But 2002 to 2003 saw a 19 percent leap in public perceptions that violent crime was on the uptick, and the figure has been going up in the years since—to 74 percent today. What’s going on?

[…]

Fear makes for easy politics. It both wins votes and primes us to give government more power at the expense of personal liberty. And that’s certainly true when it comes to crime. With the possible exception of an incumbent mayor, politicians only benefit from exaggerating the threat of violent crime. Senators, Congressmen, and even governors are rarely held responsible when the crime rate goes up. But they do win votes by proposing new powers for police and prosecutors to bring it down.

The result has been a one-way ratchet effect on crime policy. We’re perpetually expanding police and prosecutorial power, a process only occasionally slowed by the courts. Congress and state legislatures rarely take old criminal statutes off the books, but they’re always adding new ones. A 2008 report from the Heritage Foundation estimates that at the federal level alone, Congress has been adding about 55 new crimes to the federal criminal code each year since the 1980s. There are now about 4,500 separate federal crimes. And that doesn’t include federal regulations, which are increasingly being enforced with criminal, not administrative, penalties. It also doesn’t include the increasing leeway with which prosecutors can enforce broadly written federal conspiracy, racketeering, and money laundering laws. And this is before we even get to the states’ criminal codes.

This is a longstanding problem.  See, for example, my March 2005 post “There Should be a Law Against All these Felonies.”  Heck, as Alex Knapp noted last year, one third of Atlanta police academy graduates are criminals.

Harvey Silverglate also has a newish book out arguing that the average American commits three felonies a day, completely by accident.  I would swear that I’ve written about the book but can find no record of such in my archives.