Over the past few years, the political right and left have joined forces to counteract the “overcriminalization” of daily life.
The titles of recent books, such as Three Felonies a Day by civil libertarian Harvey Silvergate, One Nation Under Arrest by Paul Rosenzwieg and Brian Walsh of the conservative Heritage Foundation, and Go Directly to Jail: The Criminalization of Nearly Everything, edited by Gene Healy of the libertarian Cato Institute, give one a good sense of the current climate of opinion.
Federal criminal law, once reserved for serious misconduct that required the greatest punishment, is now used to punish a broad scope of conduct. In fact, many federal laws today impose steep mandatory punishments even in cases where the defendant acted without criminal intent.
With conservatives, liberals, and libertarians working together, the remedy for reform seems obvious: roll back some of the approximately 4,500 federal crimes Congress has added to the books. The first step, of course, is to convince Congress to stop passing new federal criminal laws with harsh penalties.
If this sounds easy, think again. Or, better yet, ask Sen. Rand Paul (R-KY).
Paul has come under fire recently for insisting that the full Senate debate and consider amendments to three new crime bills. The bills add certain chemicals, which are being used by some to make synthetic marijuana and other synthetic drugs, to Schedule 1 of the Controlled Substances Act (CSA).
Paul believes most drug offenses should be handled by state and local governments, a view held by those concerned about overcriminalization, as well as by conservative Supreme Court Justice Antonin Scalia, who recently testified before Congress that the federal courts were being clogged by routine drug cases.
Closer to my heart, the Senator also expressed concern with harsh mandatory minimum sentencing laws that apply to most federal drug offenses.
“We are concerned about people being put in jail for 20 years for marijuana,” Paul told the New York Daily News.
He is right to be concerned. Under federal law, any person found guilty of distributing any chemical or drug on Schedule 1 of the CSA is subject to a mandatory 20-year prison term “if death or serious bodily injury results.”
The law does not require any criminal intent to kill or harm another person.
Consider the following easy-to-believe scenario: a college kid gives his dorm mate a package of synthetic marijuana he bought at the store. The package says the contents are incense and “Not for Human Consumption” (as most packages bought at stores are labeled).
He echoes the package warning to his friend, “By all means do not smoke or ingest this. It will screw you up.
The friend ignores him, smokes the imitation drug, and dies later that day after crashing his car. If it can be proved that his recklessness was caused at all by the synthetic marijuana, the friend who gave him the package would face a minimum of 20 years in federal prison, despite his lack of intent to cause any harm.
It seems like common sense that this stupid law should be repealed—not extended to more drugs.
Yet, Paul's request that this absurd, strict-liability punishment be revisited before the new bills are enacted, has made him the object of vicious, often personal attacks.
Sen. Charles Schumer (D-NY), a sponsor of one of the bills, has held press conferences across New York to highlight the negative impact of synthetic drug abuse.
He told the media that Paul's “libertarian philosophy” was to blame, that Paul believes dangerous drugs should be legal.
If that is Paul's view, he has never said it. Instead, he has argued that these crimes are better addressed at the state level (by mid-2011, at least 38 states banned synthetic marijuana and 30 states had banned chemicals in synthetic stimulants) and that the lengthy prison terms for low-level offenders should be removed.
One understandably grief-stricken mother whose son was killed after abusing a synthetic drug went further. She told a reporter that Sen. Paul has “blood on his hands.”
She went on to charge that he “doesn't care that while he stalls this law, more kids are dying.”
The truth is that a minor delay in the legislative calendar is not causing any deaths. The Drug Enforcement Administration (DEA) has the power to add drugs to Schedule 1 on an emergency basis – and, in the case with many of these synthetic drugs, has already added them.
That listing is only temporary, but for all practical purposes these drugs are already prohibited under federal law. In addition, as the states that have been trying to attack this problem know firsthand, banning chemicals one at a time has become a giant game of Whack-a-Mole.
As soon as they ban one chemical, the people making and profiting from synthetic drugs simply change the formula. Federal efforts might not change anything.
We know that children face bigger threats than designer drugs. For example, we know from the National Institute on Drug Abuse that more than 2.1 million Americans age 12 and above abused inhalants in 2009.
Inhalants are perfectly legal household objects, such as paint thinners, nail polish, glue, and deodorant sprays. No one is suggesting that these products should be banned. Nor is anyone saying that because the damage caused by inhalants is so much greater than that caused by synthetic drugs. that we should not try to address the harm caused by both.
But I do think these statistics tell us that the harm caused by children who misuse chemicals cannot be solved solely—even primarily—by federal legislation.
Finally, the debate over synthetic drugs reveals the difficulty of legislating when passion overtakes reason and prudence.
Paul, who spent a recent break from his Senate duties performing free surgery for an uninsured man, should not be subject to such personal attacks about his concern for families and children.
His very real concerns about overcriminalization and excessive prison terms for minor drug offenders, which are shared by public policy leaders across the political spectrum, should not be ignored.
Sen. Paul deserves praise, not scorn, for having the courage of his convictions.
Julie Stewart is president and founder of FAMM (Families Against Mandatory Minimums). FAMM works for fair and proportionate sentencing laws that allow judicial discretion while maintaining public safety. She welcomes comments from readers.