John Whitehead's Commentary
The Overcriminalization of America: Are We All Criminals Now?
Under the blazing Arizona sun stands an encampment of military tents filled with some 2,000 people. They battle the heat by positioning themselves in front of a few large fans, but they are of little use when temperatures reach 145 degrees. Stun fences surround the perimeter, with four Sky Watch Towers bearing down on the occupants. Facial recognition software and K-9 units keep track of the people moving about, longing for their freedom.
For the residents of Tent City Jail, their time behind bars is an exercise in humiliation: they are forced to dress in pink underwear, they “work seven days a week, are fed only twice a day, get no coffee, no cigarettes, no salt, pepper or ketchup and no organized recreation.” They work on chain gangs, and have to pay ten bucks every time they want to see a nurse. This draconian treatment is not reserved for hardened criminals. In fact, most inmates in Tent City are imprisoned for less than a year for minor crimes, or are simply awaiting trial.
It is in this Guantanamo-like facility, surrounded by hardened criminals and subjected to all manners of degradation and hardship that Michael Salman—who was fined more than $12,000 and sentenced to 60 days in jail starting on July 9, 2012, for the so-called “crime” of holding a weekly Bible study in his Phoenix home, allegedly in violation of the city’s building codes—is incarcerated.
What happened to Michael Salman—armed police raids of his property, repeated warnings against holding any form of Bible study at his home, and a court-ordered probation banning him from having any gatherings of more than 12 people at his home—should never have happened in America. Yet this is the reality that more and more Americans are grappling with in the face of a government bureaucracy consumed with churning out laws, statutes, codes and regulations that reinforce its powers and value systems and those of the police state and its corporate allies. All the while, the life is slowly being choked out of our individual freedoms. The aim, of course, is absolute control by way of thousands of regulations that dictate when, where, how and with whom we live our lives.
Incredibly, Congress has been creating on average 55 new “crimes” per year, bringing the total number of federal crimes on the books to more than 5,000, with as many as 300,000 regulatory crimes. As journalist Radley Balko reports, “that doesn't include federal regulations, which are increasingly being enforced with criminal, not administrative, penalties. It also doesn't include the increasing leeway with which prosecutors can enforce broadly written federal conspiracy, racketeering, and money laundering laws. And this is before we even get to the states’ criminal codes.”
In such a society, we are all petty criminals, guilty of violating some minor law. In fact, Boston lawyer Harvey Silvergate, author of Three Felonies a Day: How the Feds Target the Innocent, estimates that the average American now unknowingly commits three felonies a day, thanks to an overabundance of vague laws that render otherwise innocent activity illegal and an inclination on the part of prosecutors to reject the idea that there can’t be a crime without criminal intent. Consequently, we now find ourselves operating in a strange new world where small farmers who dare to make unpasteurized goat cheese and share it with members of their community are finding their farms raided, while home gardeners face jail time for daring to cultivate their own varieties of orchids without having completed sufficient paperwork.
This frightening state of affairs—where a person can actually be arrested and incarcerated for the most innocent and inane activities, including feeding a whale and collecting rainwater on their own property (these are actual cases in the courts right now)—is due to what law scholars refer to as overcriminalization, or the overt proliferation of criminal laws. “Such laws,” notes journalist George Will, “which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes.”
Michael Salman is merely one more unfortunate soul caught in the government’s cross-hairs, only his so-called crime deserving of prosecution was daring to take part in a time-honored tradition that goes back centuries—gathering with family and friends at home for prayer and worship.
Since 2005, Michael and his wife Suzanne have hosted Bible studies at their Phoenix home for 20-45 family and friends, depending on the day of the week and time. Attendees park their cars on the Salmans’ 4.6-acre property so as not to crowd the street or inconvenience the neighbors. However, after some neighbors complained about the gatherings, city zoning officials started harassing the Salmans, advising them that they were breaking the law because religious activities, even in the home, have to be governed by building codes for churches, rather than residential homes. Of course, these zoning officials had no problem with group gatherings for family reunions, football parties, Tupperware parties or Boy Scout meetings. In June 2009, nearly a dozen armed police officers, accompanied by city inspectors, raided the Salmans’ property, charging them with 67 code violations that apply to commercial and public buildings, including having no emergency exit signs over the doors, no handicap parking spaces or handicap ramps.
For more than three years, the Salmans attempted to placate city officials, even agreeing to install overhead sprinklers in their converted game room, but when zoning officials started insisting that the Salmans actually install paved roads and curbs on their private property, they said “no more.” That’s when city officials really turned up the heat, sentencing Michael Salman to 60 days in jail, more than $12,000 in fines and a two-year probation. Making matters worse, city officials then found Michael guilty of violating his probation by continuing to hold Bible studies on his private property after being ordered not to have more than 12 people gathered on his property at any one time. In addition to increased jail time for Michael and fines, the Salmans will also be subjected to unannounced monthly visits by government inspectors, checking to ensure they do not have more than 12 people in their home at any given time.
The situation in which the Salmans find themselves is not all that unusual. All across the country, in cities, towns and villages of every size imaginable, Americans of all faiths—Christians, Jews, Muslims and so on—gather in their homes for fellowship, prayer and reflection. Yet as communities from New York to California adopt strident zoning codes crafted in such a way as to keep churches, synagogues and mosques at a distance, especially from residential neighborhoods, and discourage religious gatherings, these religious rituals are now being outlawed in America. For example, in an effort to discourage what it referred to as “illegal synagogues,” the Village of Hempstead, N.Y., went so far as to create zoning laws that would make it nearly impossible for Orthodox Jews to hold prayer meetings in their homes.
There was a time in our nation’s history when such an accounting of facts would have sparked immediate outrage. However, having bought into the idea that anything the government says and does is right, even when it is so clearly wrong, many Americans through their own compliance have become unwitting accomplices in the government’s efforts to prosecute otherwise law-abiding citizens for unknowingly violating some statute in its vast trove of laws written by bureaucrats who operate above the law. Yet as Nathan Burney so adeptly points out in his “Illustrated Guide to Criminal Law,” “when crimes are too numerous to count… when you’re punished, not because what you did was wrong, but simply because the law says so… when laws are too vague or overbroad… that’s not justice.”