around the bar
November 1, 2012

Overcriminalization and Reliance on Incarceration Is Not Effective, Say Criminal Justice Experts

Edwin Meese

Former U.S. Attorney General Edwin Meese addresses the ABA Criminal Justice Section Fall Meeting

America’s overreliance on incarceration is not working and the country must implement alternative methods to reduce crime, agreed experts during the opening address and plenary panel at the ABA Criminal Justice Section Fall Meeting.

“We’re in the throes of overcriminalization,” said Edwin Meese, former U.S. attorney general. “We are making and enforcing so many criminal laws, many of which create traps for the unwary and threaten to make criminals out of people who would never think about breaking the law on their own.”

Panelists expressed concerns about criminalizing minor violations. They include eating French fries at train stations or failing to properly fill out complicated paperwork when starting a small business, Meese said. 

“More and more people are being arrested, prosecuted and convicted, and some of them are doing time in prison for doing things that they never would have regarded as illegal or a violation of the criminal law,” he added.

Video: Former U.S. Attorney General Questions Use of Incarceration at 2012 Criminal Justice Institute

Instead of using the limited resources of the courts and law enforcement in these instances, the country should consider alternatives — such as civil and administrative actions, or sanctions including license revocation for businesses — to address such violations, Meese said.

Experts also agreed that even more serious offenses, including drug use and prostitution, could be resolved through means other than criminal penalties. Drug treatment programs and mental health courts are two viable options that have worked for different jurisdictions across the country.

Brooklyn District Attorney Joseph Hynes cited reduced crime and recidivism in his community because of such efforts. Today, one out of every 89 people in his community becomes a victim of a violent crime. Previously, that number was one out of every 15 individuals.

The county also saw a decreased murder rate, from an average of 780 murders a year in the early 1990s, to 200. “Last year for the first time since 1963 we had [fewer] than 200 murders in Brooklyn,” Hynes said.

Alternative means are also needed in the area of juvenile justice, and officials are working to address the “school-to-prison pipeline” to reduce the number of children who are incarcerated.

“Years of research has taught us that the minute a child sets foot in a lock up or in detention, they have a 50 percent increased chance of entering the criminal justice system as an adult,” said Melodee Hanes, acting administrator for the Office of Juvenile Justice and Delinquency at the U.S. Department of Justice. Involvement with the juvenile justice system is the single highest indicator of later criminal behavior, and it also affects an individual’s ability to get a job or finishing their education, Hanes added.

“Their chances of success go down exponentially,” Hanes said. “Incarceration should be a last resort.”

The Office of Juvenile Justice and Delinquency discovered a sharp increase in the number of students nationwide who are suspended and expelled from school — youth who are more likely to enter the juvenile justice system.

In response, the office recently created the Supportive School Discipline Initiative to develop national standards and policies for school discipline in order to divert teens becoming incarcerated, Hanes said.