America Criminalizes Too Much and Punishes Too Much

When those on parole or probation are included, one out of every 47 adults is under “some form of correctional supervision.”

Not only have we adopted more criminal laws at an astonishing clip, but the punishments our criminal laws carry have also grown markedly. Beginning in earnest in the second half of the 20th century, legislatures began to adopt laws that had, as Judge Jed Rakoff has noted, "two common characteristics: they imposed higher penalties, and they removed much of judicial dis-cretion in sentencing." Notable among these laws were statutes imposing mandatory minimum terms of imprisonment for certain crimes.

Today, sentencing changes like these can propel some sentences into the stratosphere. A defense attorney in Florida told The Economist that, looking at his clients' prison terms, it appeared to him that the United States was conducting "an experiment in imprisoning first-time non-violent offenders for periods of time previously reserved only for those who had killed someone." One of his clients who had been convicted of fraud was sentenced to 845 years. "I got it reduced to 835," the lawyer said with a sigh. A group that looked across state prison systems found "a consistent upward trend in the amount of time people spend in state prisons" and that the "longest prison terms are getting longer." Another group found that one out of every seven of those now incarcerated is serving a life sentence—more people in total than were serving any sentence in 1970. And while crime tends to be a "young man's game," 30 percent of those serving life sentences were found to be over the age of 55.

Thanks to developments like these, the United States is now a world leader when it comes to incarceration. Our incarceration rate is not only eight times as high as the median rate in western European democracies, it is higher than the rates found even in Turkmenistan and Rwanda. As in those of many states, federal prisons have been operating for years around or above 100 percent capacity. And those who emerge from our prisons often confront collateral consequences that haunt them for years—including the loss of voting rights, licenses, public benefits, jobs, and access to housing.

Just how new is all this? For a good portion of the 20th century, incarceration rates in this country were pretty flat—so much so that, as the Georgetown law professor David Cole has explained, some criminologists imagined that they'd always be the same. From the 1940s to the 1960s, the prison population actually decreased. But since the 1970s, it has "mushroomed." In all, more than a million Americans today are behind bars. When those on parole or probation are included, the Department of Justice estimates, one out of every 47 adults is under "some form of correctional supervision."

Nor do the numbers tell the whole story. Much has been written about how, when the number of crimes increases and the punishments they carry grow more severe, respect for criminal law as a whole decreases. As far back as 1967, a presidential commission convened to study the nation's criminal justice system warned that a "substantial cost of overextended use of the criminal process is the risk of creating cynicism and indifference to the whole criminal law." As the late legal scholar William Stuntz once put it, "too much law amounts to no law at all," for "when legal doctrine makes everyone an offender, the relevant offenses have no meaning independent of law enforcers' will. The formal rule of law yields to the functional rule of official discretion."

Take what happened during the COVID-19 pandemic as a microcosm. Before the pandemic, many legislatures across the country adopted laws granting executive officials discretion to declare states of emergency. Many governors, mayors, and others deployed those emergency powers during the pandemic and used them to announce their own new rules. Some observers defended the rules as essential; others questioned them. Either way, the rules often shifted from week to week and from town to town in ways difficult for people to track. In some jurisdictions, people were arrested or criminally charged for doing what at any other time could only be described as "living life." One researcher looked into the practices of a single city and found that one man had been cited for "sitting in front of his home listening to music," another for "being on a city street unnecessarily with two other individuals," and one group for "milling around aimlessly." Many of the targeted individuals were members of less powerful constituencies or minority groups. Government officials targeted churches but not favored businesses. Early in the pandemic, Time pointed to a study finding that "people of color were 2.5 times more likely to be punished for violations of COVID-19 orders than white people."

Much more could be (and has been) said about the hidden costs of expanding the reach of criminal law and the wreckage it can leave behind for individuals, their families, and their communities. But consider just one man's story. As a young man George Norris fell in love with orchids. Eventually, he quit his job as a construction worker with the hope of turning his passion into a living. He worked hard, traveling to Peru, Ecuador, and Mexico in search of exotic plants, building his business slowly over time. Eventually he made a name for himself, collectors increasingly turned to him, and his small business began to flourish. Then one day in October 2003, his life turned upside down.

That day, six federal agents dressed in black body armor and bearing firearms pulled up to his home in three pickup trucks. Two went around the back of the house while another approached the front door. When George opened the door, the agents announced that they were executing a search warrant and swept in, ordering George to sit in the kitchen while an agent watched over him. His wife was out at the time, but a neighbor soon alerted her about the brewing trouble. (Apparently agents had been asking passersby what they knew about "the criminal activity" going on at the house.) When she called her husband, she found him "frightened" and "confused"; "there was no telling what this was about."

Mrs. Norris later testified that the agents "ransacked" their home, dumping drawers full of belongings onto the floor, before carting away 37 boxes of the couple's possessions, including Mr. Norris' computer. It took about five months for the Norrises to learn that George was under investigation for importing orchids without proper documentation. After federal authorities indicted him on seven counts, George surrendered to officials, who placed him in handcuffs and leg shackles—by that point he was 67 years old—and confined him in a cell with three other arrestees. One was suspected of murder, two of dealing drugs. When he told his cellmates he was in for orchids, they erupted with laughter. One quipped: "What do you do with these things, smoke 'em?"

George tried to fight, but the legal bills racked up. Eventually, he changed his not-guilty plea to guilty. "I absolutely hated that," he later said. "The hardest thing I ever did was stand there and say I was guilty to all these things. I didn't think I was guilty of any of them." He was sentenced to 17 months in prison. (The government had asked for about double that time.) He was then and forever labeled a federal felon. He reported to prison in January 2005, was temporarily released while an appellate court heard his case, then returned to prison to serve the remainder of his term. For 71 days, officials reportedly segregated him in solitary confinement (though as it turned out, he was actually with two other inmates thanks to overcrowding). Finally, George was released in April 2007.

"The hardest part," his wife later testified, was that "I lost the man I married. He came home from prison and he ate and he slept and he sat on the couch and looked at the TV, but he wasn't really watching it. It was like having him in a coma, almost. He wouldn't water a plant, he wouldn't call the grandkids, he wouldn't invite a friend over, he didn't want to go out to dinner. Nothing."

The family struggled with their finances, having used their savings to pay for George's defense. George's business was done, his greenhouse abandoned; he simply didn't have it in him anymore. "I don't sleep like I used to; I still have prison dreams," he later told an interviewer. And then in a quiet voice he added, "It's utterly wrecked our lives."

Of course, not every federal felon is like George Norris. Many sitting behind bars are serving time for violent crimes or other conduct that most would recognize as reprehensible. Doubtless, too, new criminal laws are sometimes needed to address new social developments. And surely the federal government has a role to play in the criminal field, including to thwart criminal schemes that cross state lines or to secure fundamental rights protected by the federal Constitution. But are more criminal laws and longer sentences the answers to every problem?

This article is adapted from Over Ruled: The Human Toll of Too Much Law by permission of Harper.