On Feb. 2, the Oklahoma Justice Reform Task Force, created by Gov. Mary Fallin to perform “a comprehensive review of Oklahoma's criminal justice system,” released its recommendations. The task force proposed many good ideas about how to reduce corrections costs while maintaining public safety, but one important criminal justice issue was conspicuously absent: what we and other analysts have dubbed “overcriminalization.”
Overcriminalization refers to the exploding number of crimes covering conduct that is not intuitively wrong. Because such crimes often lack traditional criminal-intent requirements — and because the sprawling criminal laws are all but unnavigable — overcriminalization places ordinary citizens, small-business owners, and family farmers in jeopardy of being hauled off in handcuffs for conduct they sincerely believed was lawful.
Oklahoma should repeal unnecessary and duplicative criminal laws, make the criminal law more intuitive so that citizens can navigate it more easily, and return all criminal lawmaking power to the elected Legislature, where it belongs.
Oklahoma's vast criminal code contains more than 1,200 sections, significantly more than any of its neighboring states. And looking at the code would give an Oklahoman only a very partial picture of what's illegal: 91 percent of the new crimes created by the Legislature since 2010 are codified outside the criminal code.
How many new crimes are we talking about? On average, Oklahoma has been adding 26 new criminal statutes to the books each year — crimes that must have escaped the minds of prior legislatures in the state's 110-year history.
These new criminal statutes only tell part of the picture; many more criminally enforceable regulations continue to be created by administrative agencies. In essence, legislators have been delegating criminal lawmaking power to unelected and unaccountable bureaucrats — a phenomenon we call “criminalization without representation.”
For example, we examined Oklahoma's rules governing the sale of pets — where the Legislature in 2012 took praiseworthy steps to scale back regulatory abuses. Even after those reforms, the law continues to delegate broad criminal lawmaking authority to the state's Agriculture Department. Anyone hoping to comply with the rules would have to peruse more than 20 pages of regulations, broken out into 43 sections. All the regulations can be criminally enforced. Only two have a traditional criminal-intent requirement. So if you want to sell your dog's litter of puppies: beware.
Regulatory codes like this one can ensnare regular folks like Colin Grizzle, an Oklahoma City bartender hauled off to jail last year for serving vodkas infused with flavors like bacon and pickles. The practice, though popular with patrons, violated Title 37, Chapter 3, Section 584 of the Oklahoma Code.
Oklahoma should repeal unnecessary and duplicative criminal laws, make the criminal law more intuitive so that citizens can navigate it more easily, and return all criminal lawmaking power to the elected Legislature, where it belongs. The Legislature should also follow the lead of 14 other states and enact a default criminal-intent requirement to protect well-meaning citizens from unknowingly violating obscure rules governing seemingly innocent conduct.
In focusing on Oklahoma's overcriminalization problem, we don't mean to trivialize the issues raised by the Justice Reform Task Force. Reorienting incarceration to deal principally with violent crimes has worked well in our home state of New York, and the state should carefully consider how it deals with drug offenders and others guilty of nonviolent crimes. The task force deserves two cheers, but proper criminal justice reform requires focus on overcriminalization, too.
This piece originally appeared in The Oklahoman
James R. Copland is a senior fellow and director of legal policy at the Manhattan Institute. Rafael Mangual is the project manager for legal policy.