[Balko] We’re All Felons, Now

Courtesy Radley Balko

by Radley Balko
October 27, 2009

"There's no way to rule innocent men. The only power government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws."
—Ayn Rand

Violent crime is down in America across the board, spanning two decades. Earlier this month, the Justice Department announced that the incidence of reported rape had hit a 20-year low. Homicides are down, as are juvenile violence and crimes committed against children. Crime rates have been plummeting since the early 1990s to such an extent that explaining the drop has become something of an obsession among criminologists and sociologists.

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 the two are linked.

But something else is 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 thinks 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?

From the time Richard Nixon made crime a national political issue in the 1970s, politicians and public officials have conditioned us to live in perpetual fear. Our baseline is that there's too much crime, and that we aren't doing enough about it. Despite that, there was an actual drop in public worry about crime that began in 1992 and continued until 2002. As noted, that drop corresponded with an actual decline in the national crime rate, something that hadn't happened in 30 years. That crime rates were going down for the first time in a generation was something new, something worth noticing.

The 1990s were also a generally optimistic decade. The economy was humming. We weren't engaged in any major wars. We didn't have many worries, period.

Post-2002, the national mood soured. Terrorism, obviously a form of violent crime, was all over the news. The economy slowed down. Illegal immigration once again became a national issue, along with the false assumption that undocumented immigrants bring violent crime. And so we returned to a state of fear, though the crime rate continued to fall.

These fluctuations in the Gallup poll are interesting, but it's worth noting that the percentage of respondents who believe violent crime is on the rise has dipped below 60 percent only three times since 1991. This, again, despite the fact that violent crime has been in decline over the entire period.

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.

In his new book, the Boston-based civil liberties advocate and occasional Reason contributor Harvey Silverglate estimates that in 2009, the average American commits about three federal felonies per day. And yet, we aren't a nation of degenerates. On the contrary, most social indicators have been moving in a positive direction for a generation. Silverglate argues we're committing these crimes unwittingly. The federal criminal code has become so vast and open to interpretation, Silverglate argues, that a U.S. attorney can find a way to charge just about anyone with violating federal law. In fact, it's nearly impossible for some business owners to comply with one federal regulation without violating another one. We're no longer governed by laws; we're governed by the whims of lawyers.

Whatever one may think of Ayn Rand's political philosophy or ethics, her criminal justice prophecy has proven unsettlingly accurate: In our continuing eagerness to purge American society of crime, we've allowed the government to make us all into criminals.

Radley Balko is senior editor of Reason magazine where this column originally appeared. The JFP Daily features his column every Tuesday.

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