This article by Katie Greer originally appeared in Washington Post October 19, 2018.
Fall: That time of year when Americans race down the aisles to snag all things pumpkin and hunt for perfect Halloween costumes.
It’s also that time of year when criminal-justice policy experts poke fun at Chesapeake, Va., for trying to suck the fun out of Halloween. If a kid in Chesapeake above the age of 12 participates in trick-or-treating, he or she can get slapped with a misdemeanor, which entails penalties of up to $100 , up to six months in jail or both.
This is not a joke. There are a number of issues to unpack here, and they all fall under the umbrella of overcriminalization.
Let’s start with the fine. Unless the going rate for babysitting or raking leaves has increased dramatically, there aren’t very many kids who can afford to pay $100 for accepting a fun-size Snickers from a neighbor.
Nor should they; the fine far outweighs the severity of the “offense.” The fact that trick-or-treating has been classified as a misdemeanor is even more startling. Who is made safer by a 13-year-old dressed as Elastigirl sitting behind bars? Jail should be used only to further public safety. It is otherwise a waste of taxpayer dollars and an unnecessary assault on individual liberty.
To be fair to Chesapeake’s lawmakers, their website does clarify that the trick-or-treating regulations are intended to wrangle the troublemakers, whom they define as those caught “taking pumpkins from porches and smashing them in the street.”
Such behavior is clearly a nuisance and ostensibly criminal. But it can best be dealt with via other avenues, not through broadly written ordinances that make no distinction between troublemakers and those harmlessly knocking on doors for candy. As written, even honest departures from the rules can potentially land a kid who’s just being a kid in hot water.
With so many consequences attending these regulations — including a criminal record that could follow a kid for the rest of his or her life — communities must be careful how they write criminal laws.
It is concerning that the regulation does not include such clarifying verbiage. In practical terms, this means that whether a kid is charged with a misdemeanor, fined or sentenced to jail time simply comes down to a police officer’s discretion.
Chesapeake is not the only Virginia town creating bad policies. In Hampton and Newport News, there is a similar age limit on trick-or-treating that carries an even heftier $250 fine.
Adults have also been hit by overcriminalization tied to Halloween. After more than a decade of turning their property into a haunted house for the neighborhood to enjoy, a husband and wife in Cleveland each received citations for “junk and debris.” After a local news station shared their story, “the city announced the citations would be dropped.” It shouldn’t take a bad day in the media to retract harsh and unnecessary punishments.
America has too many criminal laws and too many ways of punishing behavior that isn’t intentionally harmful or that could be handled in more appropriate ways. Given that running afoul of criminal laws can have far-reaching consequences, lawmakers should carefully consider whether a certain action or behavior warrants criminal penalties.
Criminalizing “trick-or-treating” is a prime example. It’s not quite taking candy from a baby, but it’s awfully close.