'Overcriminalization' Making Us a Nation of Felons?

Experts say anyone can fall prey to "overcriminalization." CBN News investigated the growing phenomenon and how it's making America a nation of criminals.


WASHINGTON -- Some politicians have framed this fall's general elections in dire terms, saying if America doesn't get it right, it could be the end of freedom as we know it. But some stories CBN News has learned about suggest freedom may already be long gone. CBN News is launching a series of investigations into a growing phenomenon called "overcriminalization" and how it's making America a nation of criminals. Model Citizen On the surface, Lawrence Lewis looks like a model American citizen. He escaped life in the inner city and has held down two jobs most of his adult life while trying to provide for his family. "I wanted my family to have things I didn't have growing up," he told CBN News. Caring for his 96-year-old mother and two daughters, he made it his life goal to prove to himself and his children that it's possible to avoid becoming another statistic caught up in the criminal justice system. In the end, he failed -- without even knowing he was doing anything wrong. "If you would ask me this before that day, would I plead guilty to something I didn't do, I'd tell you it's impossible," he said. Lewis's Nightmare Begins Lewis's nightmare started when he was the chief engineer at Knollwood, a military retirement home in Washington, D.C. -- a job he loved until it put him on the wrong side of the law. Lewis said the home occasionally dealt with a backed-up sewage system. When it happened, he did what he'd been shown to do when he was first hired and what had been done years before he even got there. He and his staff diverted the backed-up system to a nearby storm drain they thought emptied into the city's sewer system. But they were wrong. "They said... we trying to determine if we're going to arrest me tonight. And I said, arrest me for what?" The diverted waste ended up in a creek that flows into the Potomac River. That meant Lewis, while on the job, violated the Clean Water Act. It's a federal statute that comes with a hefty fine and, for him, the possibility of five years in prison unless he implicated his bosses -- something he refused to do. "I couldn't believe that I was born and raised in the projects and I worked so hard to get out that situation and build a professional career and here I am at work getting arrested for something I had no idea was wrong," Lewis said. Faced with the possibility of being locked up, his attorney advised him to plead guilty. Lewis wanted to fight but eventually gave up. "I ended up having to do that for one reason: My kids and my momma wouldn't have [anywhere] to live," he explained. "A five-year prison sentence -- they wouldn't have anywhere to live." More Common Than You Think If you think Lewis's story is one of a kind, you're wrong. Experts say virtually anyone can fall prey to a growing phenomenon called "overcriminalization." "It is overuse and sometimes even the misuse of the criminal law," The Heritage Foundation's Paul Larkin told CBN News. Larkin is working to shine the light on stories like Lewis's to highlight the abuse of criminal law. "I've met Lawrence Lewis; I talked with him. He is a good and honorable man. The idea that he should have been criminally prosecuted is incomprehensible," Larkin said. As a former Department of Justice attorney and a criminal enforcement agent at the Environmental Protection Agency, Larkin believes the reason these cases are prosecuted is simple. "The agents who are investigating a case will have supervisors tell them if you're spending time on this, then I want a conviction. The prosecutors have a boss that will tell them the exact same thing," Larkin said. "Why? Because they want to be able to go to Capitol Hill and show all the cases that they've made to show that they need not just the money they got last year, but even more," he explained. Never-Ending Penal Code Capitol Hill is probably the best place to start if you want more information on overcriminalization -- the United States Code -- Title 18, Crimes and Criminal Procedure. There are about a thousand different pages that cover material considered to be a federal crime. The problem is not all of the estimated 4,500 federal crimes are listed in the code. There are about 50 volumes that cover all the different federal agencies that have the jurisdiction to enforce and interpret rules and regulations. When you add all of that up you're somewhere in the neighborhood of 300,000 to 400,000 rules that could be considered a federal offense. "Most people have probably heard of the FBI, the Secret Service, and the DEA. But the truth is many regulatory agencies have some law enforcement power," Larkin revealed. Experts like Timothy O'Toole, an attorney with Miller & Chevalier, argue that authority often leads to problems. "Once you have law enforcement people on staff, and you have these laws that are very broad, you almost consider yourself to have a mandate to go and find crime, even if no one's really seen it before then," O'Toole said. That mentality has led to more and more people getting entangled with these laws. America, by far, leads the world by far in putting people in prison. The United States has 760 prisoners per 100,000 people. Compare that number to Britain with 153, Germany with 90 and Japan with 63 and it becomes evident the U.S. is truly becoming a nation of criminals. One reason why is the explosion in the number of federal laws and regulations. A Wall Street Journal bar graph shows a steady increase in the number of federal sentences in the last two decades. Whether they're crimes concerning drugs, immigration, or fraud, the rising convictions continue to put more people into already overcrowded prisons. And a growing number of Washington's laws are written so are guilty, even if you didn't intend to commit a crime. So if you accidentally wander into the wrong federal land, you could be prosecuted. Federal laws cover almost every aspect of life -- from banking, hospitals, the Internet, your money, drugs, taxes, travel, the environment, endangered species -- and far, far more. George Norris Case Critics argue there are so many new laws, rules, and regulations that it's all too easy to violate one of these laws and never know you did it. Take, for example, Texas retiree George Norris and his wife, Kathy: federal agents raided and ransacked their Texas home in 2003. Originally, the indictment against them was sealed, so they weren't even told why they were targeted at first. Facing astronomical legal fees and a formidable foe in the federal government, George decided his only option was to plead guilty. "As old as I was, I didn't need to go through anything like that. I'd have gladly paid them a $50,000 fine, if that's what they wanted," he said. Instead, George wound up serving nearly two years in federal prison alongside killers, rapists, and other hardened criminals. What was his crime? A paperwork violation related to flowers in his backyard nursery: buying, importing, and selling perfectly legal orchids. George was charged with an improper paperwork violation but only after the government tried, and failed, to charge him for importing and selling what they thought were endangered orchids. The couple spent their savings, watched their health decline, and George is now the first person in his family to have a criminal record. "If you want me to cry, it won't be for me and George, it will be for the country cause I sit down now and still do it. The country I grew up in no longer exists," Kathy Norris lamented. 'Blame Congress' O'Toole, who defends people charged with federal crimes, said "I think it is fair to say that things are out of control." They're out of control not only because it can affect anyone but because most people wouldn't even know they were committing a crime. "Ordinary people who are just doing their jobs have now been found guilty of many federal crimes," O'Toole said. O'Toole lays the blame for the explosion of U.S. criminal law squarely at the feet of Congress, saying lawmakers should do a better job writing narrower laws instead of trying to score points in the public relations campaign. "It's very hard for elected lawmakers to look tough on crime while at the same time being against expanding the criminal law," O'Toole said. "Everyone wants to seem tough on crime, but I think the real problem is that nobody has been all that smart on crime," he said. Raising Awareness Meanwhile, Larkin believes the only way to reverse the tide is by raising public awareness. "Only when the public gets outraged about this will something happen," Larkin told CBN News. "Only then will you see prosecutors not prosecute these cases. Only then will you see Congress not passing anymore laws." As for Lewis, he said he's sharing his story to help others avoid what he went through. But he admits, nearly five years after his ordeal, he harbors distrust and a lot of resentment toward the government. "[A] mandatory five-year prison time with a clean background over something you done you thought was correct, that was humiliating," he said. "The threat was humiliating to me."


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