The overcriminalization of America: Are we all criminals now?

By John W. Whitehead –

August 6, 2012 – Under the blaz­ing Ari­zona sun stands an encamp­ment of mil­i­tary tents filled with some 2,000 peo­ple. They bat­tle the heat by posi­tion­ing them­selves in front of a few large fans, but they are of lit­tle use when tem­per­a­tures reach 145 degrees. Stun fences sur­round the perime­ter, with four Sky Watch Tow­ers bear­ing down on the occu­pants. Facial recog­ni­tion soft­ware and K-9 units keep track of the peo­ple mov­ing about, long­ing for their freedom.

For the res­i­dents of Tent City Jail, their time behind bars is an exer­cise in humil­i­a­tion: they are forced to dress in pink under­wear, they “work seven days a week, are fed only twice a day, get no cof­fee, no cig­a­rettes, no salt, pep­per or ketchup and no orga­nized recre­ation.” They work on chain gangs, and have to pay ten bucks every time they want to see a nurse. This dra­con­ian treat­ment is not reserved for hard­ened crim­i­nals. In fact, most inmates in Tent City are impris­oned for less than a year for minor crimes, or are sim­ply await­ing trial.

It is in this Guantanamo-like facil­ity, sur­rounded by hard­ened crim­i­nals and sub­jected to all man­ners of degra­da­tion and hard­ship that Michael Salman—who was fined more than $12,000 and sen­tenced to 60 days in jail start­ing on July 9, 2012, for the so-called “crime” of hold­ing a weekly Bible study in his Phoenix home, allegedly in vio­la­tion of the city’s build­ing codes—is incarcerated.

What hap­pened to Michael Salman—armed police raids of his prop­erty, repeated warn­ings against hold­ing any form of Bible study at his home, and a court-ordered pro­ba­tion ban­ning him from hav­ing any gath­er­ings of more than 12 peo­ple at his home—should never have hap­pened in Amer­ica. Yet this is the real­ity that more and more Amer­i­cans are grap­pling with in the face of a gov­ern­ment bureau­cracy con­sumed with churn­ing out laws, statutes, codes and reg­u­la­tions that rein­force its pow­ers and value sys­tems and those of the police state and its cor­po­rate allies. All the while, the life is slowly being choked out of our indi­vid­ual free­doms. The aim, of course, is absolute con­trol by way of thou­sands of reg­u­la­tions that dic­tate when, where, how and with whom we live our lives.

Incred­i­bly, Con­gress has been cre­at­ing on aver­age 55 new “crimes” per year, bring­ing the total num­ber of fed­eral crimes on the books to more than 5,000, with as many as 300,000 reg­u­la­tory crimes. As jour­nal­ist Radley Balko reports, “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.”

In such a soci­ety, we are all petty crim­i­nals, guilty of vio­lat­ing some minor law. In fact, Boston lawyer Har­vey Sil­ver­gate, author of Three Felonies a Day: How the Feds Tar­get the Inno­cent, esti­mates that the aver­age Amer­i­can now unknow­ingly com­mits three felonies a day, thanks to an over­abun­dance of vague laws that ren­der oth­er­wise inno­cent activ­ity ille­gal and an incli­na­tion on the part of pros­e­cu­tors to reject the idea that there can’t be a crime with­out crim­i­nal intent. Con­se­quently, we now find our­selves oper­at­ing in a strange new world where small farm­ers who dare to make unpas­teur­ized goat cheese and share it with mem­bers of their com­mu­nity are find­ing their farms raided, while home gar­den­ers face jail time for dar­ing to cul­ti­vate their own vari­eties of orchids with­out hav­ing com­pleted suf­fi­cient paperwork.

This fright­en­ing state of affairs—where a per­son can actu­ally be arrested and incar­cer­ated for the most inno­cent and inane activ­i­ties, includ­ing feed­ing a whale and col­lect­ing rain­wa­ter on their own prop­erty (these are actual cases in the courts right now)—is due to what law schol­ars refer to as over­crim­i­nal­iza­tion, or the overt pro­lif­er­a­tion of crim­i­nal laws. “Such laws,” notes jour­nal­ist George Will, “which enable gov­ern­ment zealots to accuse almost any­one of com­mit­ting three felonies in a day, do not just enable gov­ern­ment mis­con­duct, they incite pros­e­cu­tors to intim­i­date decent peo­ple who never had cul­pa­ble inten­tions. And to inflict pun­ish­ments with­out crimes.”

Michael Salman is merely one more unfor­tu­nate soul caught in the government’s cross-hairs, only his so-called crime deserv­ing of pros­e­cu­tion was dar­ing to take part in a time-honored tra­di­tion that goes back centuries—gathering with fam­ily and friends at home for prayer and worship.

Since 2005, Michael and his wife Suzanne have hosted Bible stud­ies at their Phoenix home for 20–45 fam­ily and friends, depend­ing on the day of the week and time. Atten­dees park their cars on the Salmans’ 4.6-acre prop­erty so as not to crowd the street or incon­ve­nience the neigh­bors. How­ever, after some neigh­bors com­plained about the gath­er­ings, city zon­ing offi­cials started harass­ing the Salmans, advis­ing them that they were break­ing the law because reli­gious activ­i­ties, even in the home, have to be gov­erned by build­ing codes for churches, rather than res­i­den­tial homes. Of course, these zon­ing offi­cials had no prob­lem with group gath­er­ings for fam­ily reunions, foot­ball par­ties, Tup­per­ware par­ties or Boy Scout meet­ings. In June 2009, nearly a dozen armed police offi­cers, accom­pa­nied by city inspec­tors, raided the Salmans’ prop­erty, charg­ing them with 67 code vio­la­tions that apply to com­mer­cial and pub­lic build­ings, includ­ing hav­ing no emer­gency exit signs over the doors, no hand­i­cap park­ing spaces or hand­i­cap ramps.

For more than three years, the Salmans attempted to pla­cate city offi­cials, even agree­ing to install over­head sprin­klers in their con­verted game room, but when zon­ing offi­cials started insist­ing that the Salmans actu­ally install paved roads and curbs on their pri­vate prop­erty, they said “no more.” That’s when city offi­cials really turned up the heat, sen­tenc­ing Michael Salman to 60 days in jail, more than $12,000 in fines and a two-year pro­ba­tion. Mak­ing mat­ters worse, city offi­cials then found Michael guilty of vio­lat­ing his pro­ba­tion by con­tin­u­ing to hold Bible stud­ies on his pri­vate prop­erty after being ordered not to have more than 12 peo­ple gath­ered on his prop­erty at any one time. In addi­tion to increased jail time for Michael and fines, the Salmans will also be sub­jected to unan­nounced monthly vis­its by gov­ern­ment inspec­tors, check­ing to ensure they do not have more than 12 peo­ple in their home at any given time.

The sit­u­a­tion in which the Salmans find them­selves is not all that unusual. All across the coun­try, in cities, towns and vil­lages of every size imag­in­able, Amer­i­cans of all faiths—Christians, Jews, Mus­lims and so on—gather in their homes for fel­low­ship, prayer and reflec­tion. Yet as com­mu­ni­ties from New York to Cal­i­for­nia adopt stri­dent zon­ing codes crafted in such a way as to keep churches, syn­a­gogues and mosques at a dis­tance, espe­cially from res­i­den­tial neigh­bor­hoods, and dis­cour­age reli­gious gath­er­ings, these reli­gious rit­u­als are now being out­lawed in Amer­ica. For exam­ple, in an effort to dis­cour­age what it referred to as “ille­gal syn­a­gogues,” the Vil­lage of Hemp­stead, N.Y., went so far as to cre­ate zon­ing laws that would make it nearly impos­si­ble for Ortho­dox Jews to hold prayer meet­ings in their homes.

There was a time in our nation’s his­tory when such an account­ing of facts would have sparked imme­di­ate out­rage. How­ever, hav­ing bought into the idea that any­thing the gov­ern­ment says and does is right, even when it is so clearly wrong, many Amer­i­cans through their own com­pli­ance have become unwit­ting accom­plices in the government’s efforts to pros­e­cute oth­er­wise law-abiding cit­i­zens for unknow­ingly vio­lat­ing some statute in its vast trove of laws writ­ten by bureau­crats who oper­ate above the law. Yet as Nathan Bur­ney so adeptly points out in his “Illus­trated Guide to Crim­i­nal Law,” “when crimes are too numer­ous to count… when you’re pun­ished, not because what you did was wrong, but sim­ply because the law saysso… when laws are too vague or over­broad… that’s not justice.”

Posted by Randa Wagner on Aug 14 2012. You can follow any responses to this entry through the RSS Feed. Both comments and pings are currently closed.