The Daily Caller

The Daily Caller

Diane Tran and America’s overcriminalization problem

Diane Tran, an honors student at Willis High School near Houston, works two jobs to help out with family finances. She’s been the sole breadwinner for her two siblings ever since her parents abandoned them in the course of a messy divorce. As a result, she’s missed enough school that the aptly named Judge Moriarty has ordered her to pay a $100 fine and spend a day in jail. Her criminal record will stay with her for the rest of her life, jeopardizing her ability to find work or gain admission to a university.

Moriarty’s logic? “If you let one [truant] run loose, what are you going to do with the rest of them? Let them go too?” State resources are apparently better spent making examples of exemplary students than advancing the public weal.

This appears to be a case of conspicuous enforcement — taking the law to its limits in an attempt to deter criminal activity. But conspicuous enforcement of a law also serves another purpose: It calls on the public to ask whether the law is reasonable in the first place.

Mandatory attendance and truancy laws are well-intentioned. No responsible person wants children to be deprived of an education because of the negligence of a small minority of unfit parents. Yet, as economists regularly warn, intentions are not the same as results. Once these sorts of laws are passed, reformers consider the problem fixed and focus their attention elsewhere, without asking whether the law was an effective solution.

In the case of Ms. Tran, it certainly was not. No one was made better off by the enforcement of the law. This is not to say the law should be enforced selectively, but rather a sign that the law is not serving its purpose.

Indeed, Ms. Tran’s predicament is a small part of a greater problem in the U.S.: overcriminalization. Over the past few decades, state and federal lawmakers have made more things illegal and made the punishments for breaking laws more severe.

In the case of most criminal laws, no one has asked the key question: “Who’s going to jail?” We as a society are making voluntary and victimless acts criminal simply to express disapproval, without asking what the real human costs of enforcement are. Indeed, the United States has the highest per capita prison population in the world. Over 7 million Americans are in prison, a massive 3% of the adult population. Nonviolent offenders compose more than half of the American prison population.

We should also be asking if there is room in our justice system for more than just fines and hard time. Instead of resorting to criminal courts and jail, we can look to alternative institutions that focus on reform and restitution, like the juvenile justice system, drug courts, and probation. We should also be focusing our attention on reducing recidivism through drug treatment, education, and job placement programs, instead of playing “trail ‘em, nail ‘em, jail ‘em.” When we do send people to prison, we should rely on graduated sentencing and increased judicial discretion, instead of mandatory sentencing, to ensure that the punishment fits the crime.

Sometimes the law is an appropriate means for a society to overcome social problems, but the use of law should never be undertaken carelessly. We must always ask what the intent of the law is, whether it serves that intent better than all other alternatives, and what the additional consequences of enforcement will be.

Andrew Glidden is a writer living in Berkeley, California.