Criminal Legal News

Criminal Legal News
PUBLISHED BY THE HUMAN RIGHTS DEFENSE CENTER
VOL. 1 No. 1

Dedicated to Protecting Human Rights

December 2017

Absurd, Abusive, and Outrageous:
The Creation of Crime and Criminals in America
by Christopher Zoukis

T

he U.S. is a world leader in the
jailing and imprisoning of its own citizens. The FBI estimates that local, state, and
federal authorities have carried out more than
a quarter-billion arrests in the past 20 years.
As a result, the American criminal justice
system is a robust behemoth that, across the
country, costs taxpayers billions of dollars
each year.
The American criminal justice system
and the criminal law have their roots in English common law. Developed over hundreds
of years, the criminal law reflected what
conduct English society and government
would not tolerate. Crimes developed either
as malum in se—criminal because of the
innate wrongfulness of the act—or malum
prohibitum—criminal because the government decreed it. Mala in se crimes include
murder and rape. Mala prohibita crimes
include everything from traffic tickets to drug
and gambling offenses.
Modern American criminal law has seen
an exponential increase in mala prohibita
crimes created by various legislatures. The
natural result of creating more and more
crimes has been the filling of more and more
jail cells with newly-minted criminals. Some of
these crimes are absurd, and some are outrageous. Many are subject to shocking abuse in
the hands of police officers and prosecutors.
The explosive increase in what types of
behavior have been criminalized is not the
only reason America arrests and imprisons
individuals in such large numbers. By design
or not, the criminal justice system in the U.S.
has evolved into a relentless machine that is
largely controlled by law enforcement authorities and prosecutors.

The authority to arrest people and enforce the criminal law at the initial stage is
vested almost exclusively within the broad
discretion of the police. Police exercise their
authority to arrest liberally; statistics show
that police arrest more than 11.5 million
people each year.
While the initial arrest decision is
important, the charging decisions made by
prosecutors are, arguably, much more consequential. The power of the prosecutor in the
modern American criminal justice system can
hardly be overstated, given the inordinately
high percentage of criminal cases that are
disposed of through plea agreements. The
prosecutorial discretion to charge the crimes
and enhancements deemed appropriate drives
plea negotiations and ultimately convictions.
Legislators, police, and prosecutors are
powerful agents of crime creation, enforcement, and control. As the criminal justice
system has grown at the hands of this influential triad, it has crept even further into the lives
of everyday Americans. They include children
who are being pulled into the criminal justice
system at an alarming rate. They also include
the poor and homeless, for whom policies are
specifically designed and implemented to suck
them into the system and ultimately to jail.
Policies that mandate the jailing of the poor
simply for being unable to pay fines are alive
and well in America.
As the American public comes to grips
with the out-of-control, all-consuming
monster that the criminal justice system has
become, efforts to address the situation have
begun. Unfortunately, these efforts rely on
data and crime rate trends that do not tell the
whole story. Current legislative and executive

solutions address symptoms of the illness,
but not the illness itself. An examination of
some of the various outrageous and absurd
practices in the modern criminal justice system
illustrates just how far we have to go.

Crime Creation:
Legislatures at Work
The creation of law is the work of federal and state legislatures. A significant change
to the criminal law in almost every American
jurisdiction in the last quarter century is the
legislative manufacturing of habitual offender
charges and sentencing enhancements. These
laws allow for significantly longer sentences

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