Go Directly to Jail: The Criminalization of Almost Everything.

• Author: Young, Malcolm C.
• Position: Book review

GO DIRECTLY TO JAIL: THE CRIMINALIZATION OF ALMOST EVERYTHING (Gene Healy ed., Cato Inst. 2004) 160 PP.

Go Directly to Jail (1) is all about sentencing reform. Editor Gene Healy and his writers dedicated themselves to the task of making a strong case against "overcriminalization," which, according to the flyleaf, has produced an America in which it is "frighteningly easy ... to be hauled off to jail."

Compared to just thirty-five years ago, it is relatively easy for an American to end up in jail or prison. In 1970, there were fewer than 200,000 people in state and federal prisons, a number that had remained remarkably stable during the preceding seven decades of the twentieth century. (2) From the beginning of World War II through 1972, the combined state and federal incarceration rates for sentenced prisoners remained close to or below 100 per 100,000 people. (3) But in 1973, the nation's inmate population began to increase. (4) It has grown every year since. (5) By June 2005, the number of state and federal prisoners had increased more than six-fold to an estimated 1,512,823. (6) An additional 747,529 inmates in local jails brings the number of people behind bars to 2,186,230 (7) for a national incarceration rate of 738 per 100,000 people, (8) the highest recorded rate in the world. (9)

Go Directly to Jail is a fairly slim book, a collection of six lightly-edited and barely-updated position papers previously published by the Washington, D.C.-based Cato Institute. Despite the overwhelming numerical support for their claim that it is far too easy to "haul" Americans "off to jail," the introduction and three of the first four chapters fail at their task. Presented on behalf of several small, unrepresentative portions of the incarcerated population, the case made for reform relies upon an analysis that is factually and legally weak. In pursuit of a claim of near-innocence for the alleged victims of "overcriminalization," the authors of these chapters sidestep the central issue in sentencing, which is simply what amount of punishment a society should impose on wrongdoers.

The book's final two chapters take on a more robust, comprehensive approach to reform. The contrast between them and the introduction and Chapters 2, 3, and 4 provides a valuable lesson about effective advocacy for sentencing reform. The sixth and last chapter provides a clarion call and specific recommendations for federal sentencing reform, which also has relevance to state court sentencing. Sadly, the presence of this strong chapter teaches a painful lesson about the power of America's attachment to punishment. With the benefit of hindsight, we can see that a once-in-a-lifetime upheaval in sentencing law by the United States Supreme Court has had little tangible impact on sentencing in the federal courts. In the end, then, Go Directly to Jail provides its readers with dual lessons about the magnitude of the task of achieving true sentencing reform.

1. "OVERCRIMINALIZATION" OVERSIMPLIFIED: HOW ARGUMENTS FOR SENTENCING REFORM FAVORING FAVORED OFFENDER CLASSES FAIL

   The Cato Institute was founded by Charles Koch and funded by him and his brother David Koch. The Koch brothers are from an oil, industrial, and timber-rich Kansas family with deep conservative and libertarian leanings. (10) The Cato Institute opposes government planning and regulation on all fronts, (11) including that which is imposed through criminal law. Unlike some ultra-conservative advocacy groups, it actively opposes unbridled police and prosecutorial conduct in favor of Fourth Amendment values and against federal regulation of what the Cato Institute considers individual and state prerogatives. (12) For example, the Cato Institute joined with traditional criminal defense reform groups to oppose the ultimately successful federal effort to prosecute (i.e., "criminalize") the sale of marijuana for medical purposes under California law. (13) Go Directly to Jail argues in favor of business people whose entrepreneurship put them at odds with environmental, medical, election, and other regulatory laws. Some of these people went to prison, and it is this constituency for whom Cato goes to bat.

   The Cato Institute's ideological orientation adversely affects the factual and legal analysis in the introduction (14) and Chapters 2, (15) 3, (16) and 4. (17)

   First, Go Directly to Jail bolsters its case against "overcriminalization" on claims of the good character of people prosecuted and threatened with prison. In Chapters 2, 3, and 4, Go Directly to Jail details the complaints of, respectively, newly criminalized managerial, professional, and entrepreneurial classes; (18) businesses that are prosecuted for alleged environmental crimes; (19) and medical professionals and businesses that deal with government-funded medical benefit programs. (20)

   In these chapters, the authors cite as examples: prosecutions brought against defendants such as a "Joseph Wilson" who filled in wetlands with clean dirt that was unloaded onto dry land; (21) a prosecution brought against business people who spoke out against intrusive governmental activities or too-forcefully protested their innocence of the environmental crimes with which they were charged; (22) and prosecutions such as those brought against Michael Weitzenhoff and Thomas Mariani for di minimus violations of sewage discharge requirements which were committed under exigent circumstances. (23) In support of the proposition that "overcriminalization" leaves "ordinary business people ... at risk of prosecution for everyday business activities," Gene Healy recites the plight of one Edward Hanousek, Jr., who was found responsible for a pipeline rupture which led to an oil spill into an Alaskan waterway even though he was not at the site of the accident. (24) Timothy Lynch makes a case for Paul J. Buckley, a demolition crew's supervisor who was sentenced after being convicted of discharging asbestos into the environment without any proof of intent. (25) Finally, all of Chapter 4 bemoans the plight of physicians, many of whom, it is argued, will almost inevitably be subjected to criminal liability due to the complexity and fog of federal regulations governing Medicare. (26)

   It will be perfectly clear to anyone familiar with the typical American courtroom, jail, or prison that the economic class of offenders on whose behalf the authors of the introduction and Chapters 2, 3, and 4 argue for reform are not representative of the average American prisoner--overall an underserved, predominantly minority, disadvantaged population. Many readers sensitive to the profile of the prison population are likely to be unsympathetic to the plight of a mere capable and better resourced group of people and corporations. But it would be a mistake to dismiss the arguments made on behalf of a more privileged group of offenders solely on class grounds. If the claims made on behalf of this class of offenders are correct, then there should be redress, no matter how small or elite the class. One should not fault the Cato Institute for not including within their chosen class of offenders others who are far more numerous, such as minor drug offenders or first time non-violent criminals, on whose behalf sentencing reformers traditionally argue for relief on the basis of relative culpability or minimal criminal intent. Instead, it might be instructive for all reform advocates to consider whether calls for sentencing reform based on claims that some group is less culpable as a class than other offenders are as susceptible to the flaws which visibly attach to this approach in Go Directly to Jail.

   For a significant number of offenders whose cases are highlighted in Go Directly to Jail, the facts revealed in court pleadings and opinions undermine the book's claims of their good character and innocent behavior:

   * The brief for Edward Hanousek's lack of involvement in or even knowledge of a crime lies in the fact that he was off-duty and away from the scene when a backhoe operator working under him accidentally ruptured an Alaskan oil pipeline while maneuvering the backhoe to move rocks that had fallen onto a section of rail line. (27) From an appellate court opinion, however, we learn additional information that is not given to the reader in Go Directly to Jail.

   According to the government's evidence at trial, Hanousek was obligated as an independent contractor to attend to "every detail of the safe and efficient maintenance and construction of track ... and ... special projects" for his Alaskan employer. (28) One special project involved quarrying rock with heavy equipment and machinery along a one thousand foot section of rail line that ran parallel to a high-pressure oil pipeline. (29) When the company began work in April 1994, it covered approximately three hundred feet of the pipeline in the area in which it was then working with railroad ties, sand, and ballast to protect the pipe from damage by the equipment. (30) Hanousek took over responsibility for the project in May. (31) Thereafter, the protective covering was not extended along with the work area in the section where the rupture occurred. (32) No company policy prohibited a worker from driving a backhoe along the unprotected portion of the pipeline. (33)

   So although Hanousek was away from the site when the accident occurred, it was he who failed to have the pipeline protected in a customary fashion or to instruct his employees to keep the backhoe away from unprotected pipe. Hanousek may well have been a decent person, but he was also someone whose failure to take the precautions followed by his predecessors on the job led to an environmental accident.

   * In Chapter 2, James V. DeLong reinforces his contention that the "new criminalization" makes felons out of people who have no idea that their acts are criminal with the case of "Joseph Wilson." (34) Wilson began a large development in Charles County, Maryland, in...