Bill Otis on 'George Will, missing the mark on overcriminalization'

|The Volokh Conspiracy |

A woman, demanding justice for the death of Eric Garner, shouts slogans from behind police barricades at Rockefeller Center in Manhattan earlier this month. (Reuters/Elizabeth Shafiroff)

I want to pass along some thoughts from Bill Otis, a former high-level federal prosecutor and a leading conservative commentator on criminal justice policy; they are his views, and not necessarily my own, but his analysis struck me as interesting and important to consider:

George Will is a brilliant man and a superb writer. On Thursday, however, he published an overwrought piece in The Washington Post, "Eric Garner, Criminalized to Death." The piece is short on Will's typically sharp logic, and has some unfortunate omissions.

Will's thesis is this: Garner was approached by the Staten Island policeman because he was selling untaxed (i.e., black market) cigarettes. Such taxation and its enforcement are parts of an epidemic expansion of criminal law that has gone to irrational extremes. Will says that Garner's death against this backdrop is so shocking that it might make the nation "ready to stare into the abyss of its criminal justice system":

Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state's monopoly on legitimate violence, and who fully participate in humanity's flaws, to make mistakes.

Citing Yale Law Prof. Stephen Carter, Will continues:

Society needs laws; therefore it needs law enforcement. But "overcriminalization matters" because "making an offense criminal also means that the police will go armed to enforce it." The job of the police "is to carry out the legislative will." But today's political system takes "bizarre delight in creating new crimes" for enforcement. And "every act of enforcement includes the possibility of violence" …

It's unlikely that the New York Legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. Officials who fail to take into account the obvious fact that the laws they're so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants.

Will then gets to the point he wants to make:

[Garner] lived and died in a country with about 5 percent of the world's population but 25 percent of its prisoners. In 2012, one of every 108 adults was behind bars, many in federal prisons containing about 40 percent more inmates than they were designed to hold.

Most of today's 2.2 million prisoners will be coming back to their neighborhoods, and few of them will have been improved by the experience of incarceration. This will be true even if they did not experience the often deranging use of prolonged solitary confinement, which violates the Eighth Amendment's ban on "cruel and unusual punishments" and is, to put things plainly, torture.

Where to start?

First, it might strike some that a tax on cigarettes, and criminal penalties for not paying it, are illustrations of criminalization run wild, but … are they really? Is the sales tax on furniture, tires, lemonade or a thousand other items likewise the emblem of overreach? Why would that be? Why is the taxation of cigarettes categorically different?

State sales taxes have been with us for a very long time. Did they get to be the menace of Criminalization Run Amok just last week? Are they the menace of Criminalization Run Amok at all? Will does not directly assert, and he certainly does not demonstrate, any such thing, but his thesis depends on it.

I don't like sales taxes better than anyone else, but if state governments are to be funded, they seem like as good an idea as any. Neither such taxes nor criminal penalties for evading them had previously been thought to be the hallmark of despotism; indeed, conservatives generally prefer sales taxes to income taxes, on the theory that it's better to tax consumption than production.

Second, it is of course true that, eventually, the government will use force to implement criminal law, against tax evasion and other offenses. But what is Will proposing as the alternative? There is, to be sure, the possibility that a particular law enforcement agent will, out of bullying, misplaced zeal or simply error, resort to force prematurely, or in excess (as I have said I believe happened in the Garner case). But that possibility inheres in the enforcement of any law. So what is Will's point?

The point might be that sales taxes on cigarettes are a bad idea and shouldn't be enforced; much of what he says seems to suggest as much. But suggesting is not proving, and the argument seems half-hearted.

The other and more likely point might be that (unspecified) laws roughly similar to, but even more carelessly sprawling than, cigarette taxes are yet worse. That might well be true. But it has essentially nothing to do with the shock value of Garner's death, which is the emotive engine of Will's piece.

Third and relatedly, Will is severely exaggerating when he says that Garner "die[d] for violating" New York's tax law. Garner died because the policeman viewed him, perhaps correctly (though probably not) as resisting arrest, then used too much force for too long. Is there some reason to believe the officer would have behaved differently had Garner been suspected of burglary or pimping? If there is, Will doesn't give it.

It may be that dozens or hundreds of the laws presently on the books are ill-advised—the thoughtless and at some point dangerous encroachments of a gargantuan state. I incline toward that view myself. But if so, the matter has to be considered and addressed one statute at a time. Hoisting Eric Garner's death the way Will does seems like grandstanding impersonating analysis.

Most conspicuous among Will's errors, however, is the magical leap from the weak "death-because-of-sales-tax" theory to the positively moribund "over-incarceration-because-of-too-many-statutes" theory. The likelihood that Garner or anyone else would wind up with a stretch in prison—and still less in solitary confinement—because of non-payment of cigarette taxes, or any remotely similar quasi-regulatory crime, is virtually nonexistent. It's telling that Will never finishes the point (to the extent he even starts it).

Finally, Will speaks of the "abyss" of our criminal justice system without mentioning, or even seeming to think it's worth mentioning, the main thing the system has helped produce.

Yes, it's produced some atrocious outcomes. It's produced, in addition to Eric Garner's death, the crack-fueled crime wave, the Fast-and-Furious scandal, and the OJ acquittal. What Will misses in his understandable distress is the fact that society has no choice but to seek both to reduce the system's errors and to accept their inevitability. He briefly mentions the inescapability of error, but misses most of its import; the essential concept of trade-off's just never makes it into his essay.

The principal thing our criminal justice system has produced is the one Will is most culpable for omitting: Over the last generation, the system— in large measure through more police and the increased use of incarceration—has produced an astonishing drop in crime and crime victimization. The crime rate is half what it was twenty years ago; there were, for example, more than 10,000 fewer murders in the United States last year than there were in 1993, although we have a much larger population now. Our supposed "abyss" of a system has achieved this at the same time scrutiny of the police, and protections for the accused, have never been more focused.

The amount of suffering averted by more resolute policing and a greater willingness to use incarceration is staggering. It's unfortunate that Will's piece never saw it.

Bill Otis is always a trenchant commentator on criminal justice issues. He blogs regularly over at the Crime and Consequences Blog.