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More Law, Less Justice: Proliferation of Non-Traditional Crimes

| October 10, 2014

AUSTIN – Today, the Texas Public Policy Foundation released a report by Center for Effective Justice Senior Policy Analyst Vikrant Reddy on the growing number of non-traditional criminal offenses in state law that are not listed in the state penal code. The paper, More Law, Less Justice: The Proliferation of Non-Traditional Crimes in the Texas Legal Code, recommends the creation of a temporary voluntary commission to review the criminal laws outside the state penal code and recommend which offenses ought to be placed within the penal code and which to abolish altogether.
 
“Texas law now lists about 1,500 criminal offenses outside the penal code that traditionally would never have been recognized as crimes,” said Reddy. “Among these are eleven different felonies related the collection of oysters. Creating a commission to review these offenses and to recommend which ones to eliminate—or at least place in the penal code—would be a good first step in returning the law to its proper scope.
 
“Texas adds over forty new criminal laws per legislative session—not including accompanying sentencing enhancements. Because nobody has holistically reviewed the tangle of offenses in over twenty years, unusual penalty inconsistencies have developed. Dredging for oysters at night can be a felony, but hiding a human corpse is a mere misdemeanor.”

Introduction

There are over 1,500 “crimes” listed outside the Texas Penal Code. Texas should establish a commission to review these offenses and recommend which can be placed within the Code—and which can be abolished altogether.

In the 83rd Texas Legislative Session, legislators considered HB 2804 by Rep. Steve Toth, a bill to establish a temporary and volunteer commission to re-examine the non-traditional criminal offenses in state law—namely, those offenses not listed in the state penal code.[1] The bill proposed that the commission would make recommendations on which crimes to place in the penal code and which to abolish altogether. The volunteer commission would consist of volunteers, such as prosecutors, judges, criminal defense lawyers, criminal justice scholars, and business leaders.

There are around 1,500 such non-traditional offenses scattered throughout state code, and they range from dredging for oysters at night[2] to thrashing pecan trees[3] to lying in a fishing tournament.[4] These are criminal offenses—not just civil and administrative violations—and they are subject to criminal sanctions, including incarceration.

HB 2804 did not pass last session; this was unfortunate because the legislation would have been an important tool for fighting overcriminalization in Texas. In the 84th Legislative Session, state legislators should revive it. They should also allow the bill to stand alone, rather than attaching it to another bill, so that legislators and the public can clearly evaluate it on its own merits.

How Criminal Laws Have Multiplied Throughout the Texas Code

In 1993, the State of Texas appointed the Texas Punishment Standards Commission to revise and update the state penal code. The Commission is widely considered to have been a success. It produced recommendations to enhance many sentences for violent offenders, improve treatment options for nonviolent offenders, remove several obsolete offenses altogether, and reorganize the code.[5] A group of national scholars later ranked the Texas Penal Code the best state code in the country.[6]

Even this successful project, however, was limited. The Commission reviewed only the offenses in the state penal code, not the numerous other crimes throughout Texas law which carried significant punishments. In the ensuing years, the number of these offenses has only grown. According to Shannon Edmonds, a former prosecutor who is now the Director of Governmental Relations for the Texas District and County Attorneys Association (TDCAA), Texas adds over forty new criminal laws per legislative session (not including accompanying sentencing enhancements). Remarkably, there are now more criminal penalties listed in the Texas Occupations Code than there were in the Texas Penal Code as originally enacted.

Among the most unusual crimes in Texas, all of which carry the risk of incarceration, are the following:

  • Lying in a fishing tournament. This is Class A misdemeanor, punishable by up to one year in jail.[7]
  • Causing pecans to fall from a pecan tree by any means, including by thrashing. This is a misdemeanor, punishable by up to three months in jail.[8]
  • Driving stock to market without a bill of sale or sworn list. This is a Class B misdemeanor, punishable by up to 180 days in jail.[9]
  • Mislabeling a container of citrus fruit. This is a Class B misdemeanor, punishable by up to 180 days in jail.[10]
  • Issuing, as a warehouseman (or his officer, agent, or employee), a duplicate or additional negotiable warehouse receipt for goods if the warehouseman knows at the time of issuance that a previously issued negotiable warehouse receipt describing those goods is outstanding and not cancelled. This is a felony, punishable by up to five years in prison.[11]
  • Using the name of a credit union without including the words “credit union” or the abbreviation “CU” and an appropriate descriptive word or words, or an acronym made up of initials of the appropriate descriptive word or words and ending in “CU,” approved by the commissioner. This is Class A misdemeanor, punishable by up to one year in jail.[12]
  • Delivering materials for industrial homework to any person in Texas without an employer’s permit. This is a misdemeanor, punishable by at least 30, but not more than 60, days in jail.[13]
  • Owning, leasing, operating, or controlling an oil property in Texas and equipping or enclosing the oil property, or any part of the oil property. This is a misdemeanor punishable by up to six months in jail.[14]
  • Discriminating, as a theater manager (including a theater owner or lessee, or a representative of an owner or lessee) against “reputable” theaters, operas, shows, or other productions. This is a misdemeanor punishable by up to ten days in jail.[15]

These are just a sampling of the obscure, non-traditional crimes which a review commission would be well-positioned to re-evaluate. These crimes do not have individual victims and do not involve fraud or coercion. Several actually involve voluntary transactions between two parties.[16]

Furthermore, because no commission has holistically reviewed the tangle of offenses in over twenty years, unusual penalty inconsistencies have developed. Dredging for oysters at night can be a felony,[17] but hiding a human corpse is a mere misdemeanor.[18]

Edmonds points out that the overcriminalization problem is one that must be solved, ultimately, by legislators, not by prosecutors. It is the legislators, after all, who create the surplus of laws, sometimes in a hasty reaction to a perceived need. He notes, for instance, that state legislatures across the country received numerous calls in 2012 and 2013 to pass a version of “Caylee’s Law,” legislation that would require people to report missing children within 24 hours of their disappearance or report dead children within one hour of discovery. These proposals were prompted by a sensational Florida case in which a woman failed to report her two-year-old daughter’s disappearance, and in time, became widely suspected of having killed the child.[19] An internet site urging states to pass versions of the law gained over one million supporters in less than one month.[20]

Some commenters pointed out that the law would be counter-productive under a variety of hypotheticals. It might, for example, cause parents to be making phone calls to police departments when they ought to be looking for their child.[21] Edmonds, though, made an additional critique: the appropriate laws to handle such situations already existed. In Texas, he said, at least seven different criminal statutes—tampering with physical evidence,[22] endangering a child,[23] failing to report a corpse,[24] abusing a corpse,[25] failing to report child abuse/neglect,[26] providing a false report to a peace officer,[27] and providing a false report regarding missing child or missing persons[28]—could have been applied.

Texas did manage to escape the 83rd Session without passing Caylee’s Law, but a version of the legislation has passed in nearly a dozen other states.

Edmonds makes these observations in his personal capacity, not on behalf of the TDCAA, but his views belie the widespread assumption that prosecutors are the people most responsible for cluttered criminal law.[29]

Of course, while prosecutors are not the root of the overcriminalization problem, there is no doubt that they are well-positioned to take advantage of the clutter created by legislators. As Professor Paul Robinson, an internationally renowned expert on the reorganization of criminal codes, has observed:

[T]he trend of having overlapping offenses also undermines the rule of law by shifting authority to set the general level of punishment, as statutorily set by the grading of an offense, away from the legislature and into the hands of prosecutors and police, who can pick and choose among the multiple and overlapping related offenses that may apply. Even judges who try to interpret laws according to legislative prerogative may find their task impossible, as interpretive canons mandate that any overlap in offenses be read so that nothing is rendered superfluous. The task may require the court to distort the meaning of one provision in order to give meaning to the existence of another.[30]

Prosecutors are also allowed “multiple bites at the apple” because they are permitted to charge defendants with myriad crimes, all of which are essentially the same offense. If the prosecutor is unable to prove the elements of one charge, he moves on to the next, essentially redundant, one. Eventually, the prosecutor hopes, something will surely stick.[31] Centuries ago, Cicero recognized that “Injustice often arises through chicanery, that is, through an over-subtle and even fraudulent construction of the law. This it is that gave rise to the now-familiar saw, ‘More law, less justice.’”[32]

Recommendation

Ultimately, assigning blame for the proliferation of criminal law between legislators and prosecutors is irrelevant. Moving forward, the 84th Texas Legislature should create a commission to review the non-traditional offenses outside the penal code with the goal of developing an omnibus proposal or package of proposals that would rein in the growth of offenses outside of the Penal Code. This proposal or set of proposals could even be considered an “unsession” as occurred earlier this year in Minnesota. This “unsession” resulted in the repeal of more than 1,000 unnecessary laws, including many criminal offenses, including abolishing the misdemeanor for carrying fruit an illegally sized container.[33] It would be remarkable if, for example, the rules of the Texas House, which are adopted the beginning of the session, set at least one day for consideration of bills that repeal existing laws.

The composition proposed in HB 2804 proposed nine members,[34] and specified that the membership must include “representatives of all areas of the criminal justice system, including prosecutors, defense attorneys, judges, legal scholars, and relevant business interests.”[35] Going forward, the inclusion of defense attorneys, scholars, and business interests on the commission would help ensure that the commission takes a balanced approach to protecting citizens from overboard state law.

A new proposal should also maintain the language that made the commission temporary and voluntary—both of these measures protect against stasis and the prospect of rising costs.

The charge of the commission should explicitly exempt from review the offenses listed in the state penal code, chapter 481 of the health and safety code (“the Controlled Substances Act”), and those related to the operation of a motor vehicle. Given that these traditional offenses account for so much volume in the system, a volunteer panel would lack the resources to examine them. Moreover, the purpose of identifying unnecessary, duplicative, and overbroad criminal laws is somewhat distinct from the function of a broader commission which would regularly evaluate whether the sentences being given for traditional and legitimate offenses are just, effective, and consistent. Also, while a broad sentencing commission might be sensibly housed at the Legislative Budget Board which has the capacity to project the impact of sentencing changes on the prison population, the panel proposed by HB 2804 is more analogous to an interim legislative committee, but for the fact that the members would not be legislators.

Finally, the commission’s recommendations should be made before the first day of the 85th Legislative Session in 2017.

Conclusion

On November 15, 2013, at the Federalist Society’s National Lawyers’ Convention in Washington, DC, Judge Neil Gorsuch, who was appointed to the Tenth Circuit by President George W. Bush in 2006, offered the following thoughts on the proliferation of criminal laws in modern American legal codes:

Without written laws, we lack fair notice of the rules we as citizens have to obey. But with too many written laws, don’t we invite a new kind of fair notice problem? And what happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?

The sort of excesses of executive authority invited by too few written laws led to the rebellion against King John and the sealing of the Magna Carta, one of the great advances in the rule of law. But history bears warning that too much—and too much inaccessible—law can lead to executive excess as well. Caligula sought to protect his authority by publishing the law in a hand so small and posted so high that no one could really be sure what was and wasn’t forbidden….

In Federalist 62…Madison warned that when laws become just a paper blizzard citizens are left unable to know ‘what the law is’ and to conform their conduct to it. It’s an irony of the law that either too much or too little can impair liberty. Our aim here has to be for a golden mean, and it may be worth asking today, if we’ve strayed too far from it.[36]

Texas law now lists about 1,500 offenses that likely would not have been recognized by the drafters of the Magna Carta or the Federalist Papers (or even by Caligula) as crimes. Among these are eleven different felonies related the collection of oysters.[37] It should be obvious that in Texas, we have “strayed too far from the golden mean,” as Judge Gorsuch phrased it. Creating a commission to review the problem and recommend solutions to legislators would be a good first step in returning the law to its proper scope.

 


[1] H.B. No. 2804, 83rd Session (2013). Much of the analysis in this Policy Perspective was originally presented in Vikrant P. Reddy, A Commission to Review all Criminal Laws Outside the Penal Code (Texas Public Policy Foundation 2013).

[2] Chapter 76 of the Parks & Wildlife Code governs oysters, and section 76.118 assigns penalties for various oyster offenses. See Tex. Parks Code Ann. § 76.118 (Vernon 2011). If an offender has been found guilty on two or more occasions in a five-year period of having violated sections 76.101 (Oyster Licenses Required), 76.107 (Sale of Sport Oysters Prohibited), 76.109 (Night Dredging Prohibited), or 76.116 (Oysters from Restricted Areas), then his third offense within that period is a felony. Ibid. Similarly, if an offender has been found guilty on just one prior occasion of having violated section 76.109 and section 76.116, then the offense is a felony. Ibid.

[3] Texas Gov’t Code Ann. § 3101.010 (Vernon 2011). The statute provides that this is not an offense if the tree is located on: (1) land owned by the person causing the pecans to fall; (2) privately owned land, and the person causing the pecans to fall has the written consent of the owner, lessee, or authorized agent of the owner or lessee; (3) land owned by the state or a political subdivision of the state and in the boundaries of a municipality, and the person causing the pecans to fall has written consent from an officer or agent of the agency or political subdivision controlling the land or from the mayor of the municipality; or, (4) land owned by the state or a political subdivision of the state and outside the boundaries of a municipality, and the person causing the pecans to fall has written consent from an officer or agent of the agency or political subdivision controlling the property or from the county judge of the county.

[4] Tex. Parks Code Ann. § 66.119 (Vernon 2011).

[5] 2013 Legislative Budget Board Recommendations 271.

[6] Paul H. Robinson, Michael T. Cahill & Usman Mohammed, The Five Worst (and Five Best) American Criminal Codes, 95 Nw. U. L. Rev. 1, 60 (2000).

[7] Tex. Parks Code Ann. § 66.119 (Vernon 2011).

[8] Texas Gov’t Code Ann. § 3101.010 (Vernon 2011). The statute provides that this is not an offense if the tree is located on: (1) land owned by the person causing the pecans to fall; (2) privately owned land, and the person causing the pecans to fall has the written consent of the owner, lessee, or authorized agent of the owner or lessee; (3) land owned by the state or a political subdivision of the state and in the boundaries of a municipality, and the person causing the pecans to fall has written consent from an officer or agent of the agency or political subdivision controlling the land or from the mayor of the municipality; or, (4) land owned by the state or a political subdivision of the state and outside the boundaries of a municipality, and the person causing the pecans to fall has written consent from an officer or agent of the agency or political subdivision controlling the property or from the county judge of the county.

[9] Tex. Agric. Code Ann. § 146.006 (Vernon 2011).

[10] Texas Agric. Code Ann. § 93 (Vernon 2011).

[11] Texas Bus. & Com. Code Ann. § 35.31 (Vernon 2011).

[12] Texas Fin. Code Ann. § 122 (Vernon 2011).

[13] Texas Health & Safety Code Ann. § 143 (Vernon 2011).

[14] Texas Nat. Res. Code Ann. § 88 (Vernon 2011).

[15] Texas Occ. Code Ann. § 2156.005 (Vernon 2011).

[16] For guidelines on reversing overcriminalization, see Marc A. Levin and Vikrant P. Reddy, Twelve Steps for Overcoming Overcriminalization, Texas Public Policy Foundation (2012); Ronald M. Dworkin, Law’s Empire 143 (1986), (“In one department, criminal law, Anglo-American practice…believe[s] that no one should be found guilty of a crime unless the statute or other piece of legislation establishing that crime is so clear that he must have known his act was criminal, or would have known if he had made any serious attempt to discover whether it was. In the United States, this principle has the status of a constitutional principle, and the Supreme Court has on many occasions overturned criminal convictions because the supposed crime was too vaguely defined to give the necessary notice.”) (citations omitted).

[17] Chapter 76 of the Parks & Wildlife Code governs oysters, and section 76.118 assigns penalties for various oyster offenses. See Tex. Parks Code Ann. § 76.118 (Vernon 2011). If an offender has been found guilty on two or more occasions in a five-year period of having violated sections 76.101 (Oyster Licenses Required), 76.107 (Sale of Sport Oysters Prohibited), 76.109 (Night Dredging Prohibited), or 76.116 (Oysters from Restricted Areas), then his third offense within that period is a felony. Ibid. Similarly, if an offender has been found guilty on just one prior occasion of having violated section 76.109 and section 76.116, then the offense is a felony. Ibid.

[18] Tex. Penal Code Ann. § 42.08 (Vernon 2011).

[19] Lizette Alvarez, “Casey Anthony Not Guilty in Slaying of Daughter,” The New York Times (5 July 2011).

[20] Brian Stelter & Jenna Wortham, “Watching a Trial on TV, Discussing it on Twitter,” The New York Times (5 July 2011) (“[T]he viewing public was captivated by Caylee Anthony’s death and Casey Anthony’s trial to a degree that has not been seen in years, even drawing comparisons in some quarters to the O. J. Simpson trial. Thanks to social networking Web sites like Facebook, members of the public reacted to every moment of the televised testimony in real time, driving even more coverage on national morning news programs and on local newscasts.”).

[21] See, e.g., Radley Balko, “Why Caylee’s Law is a Bad Idea,” Huffington Post (11 July 2011).

[22] Tex. Penal Code Ann. § 37.09 (Vernon 2011).

[23] Ibid. § 22.041 (Vernon 2011).

[24] Tex. Penal Code Ann. § 37.09(d)(2) (Vernon 2011).

[25] Ibid. § 42.08(a)(5) (Vernon 2011).

[26] Tex. Fam. Code Ann. § 261.109 (Vernon 2011)

[27] Tex. Penal Code Ann. § 37.08 (Vernon 2011).

[28] Ibid. § 37.081 (Vernon 2011).

[29] Professor William Stuntz, who was perhaps the foremost proponent of this position before his death in 2011, famously expounded on the argument in a 2001 Michigan Law Review article. See Pathological Politics of Criminal Law at 537-38. See also Stephanos Bibas, Sacrificing Quantity for Quality: Better Focusing Prosecutors’ Scarce Resources, 106 Nw. U. L. Rev. Colloquy 138, 139 (2011) (citing Stuntz’s views).

[30] Robinson, et al, Modern Irrationalities of American Criminal Codes, 100 J. Crim. L. & Criminology at 713.

[31] Ibid. at 519 (“[C]riminal codes have at least three important consequences. First, they shift lawmaking from courts to law enforcers. Because criminal law is broad, prosecutors cannot possibly enforce the law as written: there are too many violators. Broad criminal law thus means that the law as enforced will differ from the law on the books. And the former will be defined by law enforcers, by prosecutors’ decisions to prosecute and police decisions to arrest.”).

[32] Marcus Tullius Cicero, The Treatise of Cicero, De Officiis; or, His Essay on Moral Duty, (Bell & Bradfute: 1798), trans. William McCartney.

[33] Paul Kessler, “‘Unsession’ Undoes More Than 1,000 Outmoded Laws,” CBS 4 Minnesota/Associated Press, May 27 2014.

[34] H.B. No. 2804, §1(c).

[35] Ibid. §1(d).

[36] The Hon. Neil Gorsuch, Justice, United States Court of Appeals for the Tenth Circuit, 13th Barbara K. Olson Memorial Lecture at the Federalist Society Lawyers’ Convention (Nov. 15, 2013).

[37]Scott Henson Says Texas Has Eleven Different Felonies You Can Commit With an Oyster,” Austin American Statesman (25 February 2013).

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