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Editor: Kevin Cole
Univ. of San Diego School of Law

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Thursday, March 17, 2005

Felonious Funk

Tennessee law professor Glenn Reynolds, perhaps better known as the Instapundit, talks here about overcriminalization and the trend of categorizing most crimes as felonies, resulting in widespread disenfranchisement, etc.  He writes:  "Felonies were once a fairly rare class of crime, a class that generally carried capital punishment as a more-than-theoretical possibility. A felon was, by virtue of his heinous acts, an outcast from society. Even if permitted to live, he was expected to bear the mark of his iniquity for life, in the form of lost civil rights like the right to vote and the right to bear arms. To be a felon was to be a permanent outcast within one's own society. But felonies aren't so few anymore. New felonies are being created all the time, often for activity that seems, morally, not terribly awful. The currency of felony has been inflated, and has thus, inevitably, lost value. In my home state of Tennessee, we tried to deal with this problem some decades ago by creating special "Class X" felonies, with stiffer punishments, tighter requirements for parole, and so forth.

The issuance of new currency is a common response to runaway inflation. It's also a futile one if the authorities just keep the printing presses running. That's what happened in Tennessee, as lawmakers vied to designate more crimes as "Class X" felonies in order to demonstrate their toughness on crime, until the whole enterprise became a legislative joke.

 

It's been pretty much the same story everywhere else. Where once "felony" meant things like murder, rape, or armed robbery, now it includes things like music piracy, or filling in potholes that turn out to be "wetlands." As the title to a recent book edited by Gene Healy notes, we've achieved the criminalization of almost everything.

 

Which means, in fact, the criminalization of almost everyone, too -- if you haven't been convicted of some felony or other, it's probably because no prosecutor has tried to put you away, not because you haven't committed one, whether you realized it at the time or not. 

With felonies created so promiscuously, it's no surprise that people are upset that in the process we've created so many permanent outcasts. Separating a few people from society may be salubrious, but as the numbers grow, so does the stress, and the numbers have grown a lot."  [Mark Godsey]

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