The Colorado legislature this year took a modest, but welcome step towards restraining its own penchant for overcriminalizing the economic and personal lives of Coloradans. Let’s hope it makes us all a little bit freer from an often overweening state.
House Bill 11-1239 came out of recommendations by the Commission on Criminal and Juvenile Justice (CCJJ), passed 64-1 in the Colorado House of Representatives and unanimously in the Colorado Senate, and has been signed into law by Governor Hickenlooper.
A meatier bill might require that every time a legislator seeks to create or expand a punishable offense, they would have to recommend an existing law to pare back or repeal, but it is hard to imagine that actually passing. As it is, HB 1239 requires that the fiscal note for any piece of legislation that creates a new crime, or makes changes to the punishment or elements of an existing offense, must include additional information, including:
a) A description of the elements of the proposed new crime, or a description of the new, amended, or additional elements of an existing crime;
(b) an analysis of whether the new crime, or changes to an existing crime, may be charged under current Colorado law;
(c) a comparison of the proposed crime classification to similar types of offenses; and
(d) an analysis of the current and anticipated future prevalence of the behavior that the proposed new crime, or changes to an existing crime, intends to address.
In this podcast interview, Colorado State Public Defender and CCJJ voting member Doug Wilson notes that in Colorado there are numerous “boutique” crimes (where legislators passed criminal offenses already covered by other criminal offenses) that “really complicated the criminal code.” Wilson continues that the idea behind HB 1239 is that when a legislator introduces a bill, there will be information provided that shows whether that bill is necessary, what it would cost to enact the new crime, and if not necessary, what other criminal offenses already cover that conduct.
Such “boutique” crimes complicating the criminal code is an excellent example of overcriminalization.
According to the Heritage Foundation’s Overcriminalized.com website:
“Overcriminalization” describes the trend in America — and particularly in Congress — to use the criminal law to “solve” every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives.
Overcriminalization is also a trend at the state level. As I wrote in a 2005 Independence Institute issue paper on overcriminalization in Colorado:
Colorado currently has some 30,000 laws filling more than 50 volumes of the Colorado Revised Statutes, both criminal and regulatory. Every session, the Colorado General
Assembly passes hundreds of new laws for government to enforce and citizens to both understand and obey. Aside from the sheer number of laws, the definition of what constitutes a criminal act has changed; often the legislature actually creates new crimes, and thus, new criminals, where no inherent criminality exists. Overcriminalization detracts from the seriousness of the law. This in turn breeds a lack of respect for the law.
Overcriminalization is also a step backwards from the concept of clear and simple rules — essential for dynamic and vibrant economic activity — so that both individuals and businesses can be reasonably sure as to the legality of activity in which they are engaging.
To be sure, the legislature is still free to pass redundant, convoluted and even unnecessary laws that we are all obligated to both understand and follow, but hopefully HB 1239 will provide the information needed to at least slow the growth of overcriminalization in Colorado.
(Originally published in the Huffpost Denver)