If you go dancing at a local bar, you may cause the manager to commit a criminal offense. That’s right. The manager on duty at Rack Daddy’s pool hall in south Dallas was issued a criminal citation earlier this year when officers from the Texas Alcoholic Beverage Commission and Dallas Police Department observed dancing. It seems the bar did not have a dance hall permit from the City of Dallas. A trial is set for November.
This is just one example of the trend toward overcriminalization, in which criminal law is increasingly extended well beyond the realm of murderers, rapists and thieves to ensnare ordinary businesses and individuals. The problem on the federal level is well documented, as there are over 4,000 criminal laws. Most recently, the Violence Against Women and Department of Justice Reauthorization Act passed earlier this year made “annoying” someone on the Internet a federal crime punishable by up to two years in prison.
However, overcriminalization is also a state problem. In addition to customers’ dancing, there are many examples of ordinary business activities criminalized in Texas law. No longer can any Texan simply look at the Penal Code to determine what is a criminal offense; hundreds of other criminal offenses are littered throughout complicated codes on topics such as agriculture, finance, and natural resources.
Consider that Section 14.072 of the Agriculture Code makes it a separate felony offense for each day a person transacts in the public grain warehouse business without a current state license. Whether or not grain warehouses need to be regulated, it hardly seems necessary to make an infraction of the licensing scheme a third degree felony, which is punishable by up to ten years in prison.
There’s also something fishy about Section 436.011 of the Health and Safety Code, which makes it a criminal offense for selling shellfish and crabmeat that came from a “closed area,” does not place every word on the label exactly as required by the state, or was not processed or packaged precisely according to the state’s Byzantine regulations. Again, whether or not the case for government control of this industry holds any water, it can surely be accomplished without putting seafood sellers and processors in prison.
The Texas Free Enterprise and Antitrust Act of 1983 is also pernicious both because of its overly broad language and the criminal penalties for running afoul of its almost limitless sweep. The Act provides in part, “Every contract, combination, or conspiracy in restraint of trade or commerce is unlawful.” That would presumably include an artist selling her paintings exclusively through one art gallery, a common monopolistic practice that is arguably beneficial to the artist, the gallery, and the public, because otherwise there might be no place where the artist’s work can be viewed. The Act makes any such restraint on trade a felony punishable by up to three years in prison.
Many criminal laws are simply unnecessary, because they involve conduct for which there is an appropriate civil remedy. For example, committing libel against an individual or business has been a tort for centuries. However, the Texas Legislature in 1997 made it a state jail felony for someone to circulate an untrue statement against a bank. This provision was deposited into Section 59.002 of the Finance Code.
Ultimately, all state laws must be reviewed to determine where we have gone too far in using the blunt instrument of criminal law. Criminal penalties should be reserved for circumstances when we really want to be punitive, especially since upon conviction of anything more than a Class C misdemeanor, a person is disqualified from obtaining numerous occupational licenses and permits.
However, the danger is not just that ordinary individuals and businesses will be unfairly caught in the dragnet of the burgeoning body of criminal law, but that the traditional and legitimate use of criminal law will be trivialized.
The moral import of being labeled a criminal, and particularly a felon, is diluted by the inappropriate use of criminal law.
Creating more crimes may be appealing for legislators looking to take credit for passing another law, but the law of unintended consequences cannot be repealed by even the most powerful politician.
Marc A. Levin is director of the Center for Effective Justice at the Texas Public Policy Foundation (www.texaspolicy.com).