Legislators have passed thousands of new criminal laws since the 1970s. There are so many federal crimes now that the Congressional Research Service ran out of resources before it ran out of crimes to count in the U.S. Code and Code of Federal Regulations. We do know that there are at least 4,500 federal crimes today.
Worse, many of these thousands of federal crimes do not require any intent to break the law. “Strict liability” offenses make you a criminal whether or not you know your actions are criminal.
So the old children’s rhyme, about not doing crime if one can’t do time, no longer applies in our hyper-criminal society. Our modern legal risks are better captured by attorney Harvey Silverglate’s book title, “Three Felonies a Day.” As retired Louisiana State University law professor John Baker was quoted in the Wall Street Journal in 2011: “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime.”
And that is just federal crimes. This does not count likely tens of thousands of state, county/parish, and local offenses. Three felonies likely undercounts the offenses we commit every day, fellow criminal.
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And there lies the first part of effective crime reduction, reducing the number of crimes, particularly those without any intent requirement. Reducing crime also means turning away from the ridiculously long sentences that are shown to add little to, and may even detract from, criminal sentencing’s rehabilitative (primary) goal.
But there is resistance in the Senate, while ancient drug warrior Jeff Sessions has ordered prosecutions for the longest sentences possible. Our chance to reform the front end of our problem — over-criminalization and overlong sentences — has apparently again slipped away.
There is a fair chance of back-end reform in this Congress, with bills like the First Step Act promising, among other things, “recidivism reduction programming” and time off for participating in those programs. Support for these programs is finally bipartisan, now that we can show the tens of billions of dollars we waste annually, and only then discuss the wasted human lives.
So what “recidivism reduction programming” is going to save the federals some billions of dollars this decade? Training and treatment: GEDs and job skills training, alongside substance abuse treatment and ongoing mental health care, reduce recidivism.
Offer these things, at a fraction of prison operating costs, and our streets will become safer than with the ridiculously long and insufficiently deterrent sentences currently clogging our books.
The Federal Bureau of Prisons itself has documented that substance abuse treatment can reduce discipline problems inside, and re-offenses after release. Estimates suggest that more than half of inmates suffer from medically-defined substance abuse or dependence issues, and that shoots to perhaps 85 percent when including inmates who used substances in the course of their offenses. Clear the clouds of drugs and alcohol from these inmates’ thinking, and a major cause of crime dissipates.
There is also a physical element to substance abuse and dependence, particularly neurochemical. Even simple abuse, short of addiction, affects how a brain works. Long-term dependence fundamentally changes one emotionally and intellectually, as well as physically. Ongoing sobriety requires adequate health care inside our overcrowded prisons (which lack the resources to meet even basic needs) and continuous care after release (which millions of Americans still do not have).
Substance abuse often occurs alongside other, underlying mental health issues. These maladies also need ongoing care. But ongoing community care does not exist for many, so our prisons remain the deeply flawed mental institutions they became after the 1980s.
Wherever one stands on universal health care, the empirical fact is that ordinary mental and physical health care, joined with drug treatment, reduces risks of re-offense. Additionally educating and training future ex-inmates for careers makes all of us safer than prison alone, at a fraction of the cost.
Jay Hurst is am attorney based in Lexington and Durham, N.C. He concentrates on criminal sentencing, appeals, post-conviction matters and the Freedom of Information Act. Reach him at firstname.lastname@example.org.