Crime and Punishment: Utah’s Voluminous Laws

It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood. —James Madison, Federalist 62

Recently we brought to your attention Utah’s new effort at criminal justice reform. This effort is designed to decrease prison populations in order to decrease public expenditures—to achieve a more efficient administration of justice. In other words, to be “smart on crime.” An article in The Economist gives one reason for growing prison populations: too many laws. This led us to wonder just how many laws there are in our state. While Utah code has over ten million words of laws and regulations, the master table of criminal offenses adds up to 10,403 crimes you can be charged with at the state and local level. With that many laws it is nearly impossible for any person to know what is and is not illegal. Some have even suggested that an average person could easily commit three felonies a day without even realizing it.

Winston Churchill said it best: “if you make ten thousand regulations you destroy all respect for the law.” Well, we have over ten thousand criminal offenses alone—not counting voluminous regulations. The reality is that most people are breaking many of these laws on a regular basis without even knowing it. John Stossel wrote that such extensive rules “paralyze life.” At a minimum, they preclude liberty.

Government legitimately exists to protect the fundamental rights of each individual who comprises it—life, liberty, and property, among other rights. With over 10,000 laws, how many are designed to prohibit offenses against person or property—the most legitimate of all government laws? The answer is only 5%. The rest are mostly regulatory in nature, including traffic and tax offenses, or crimes related to “public order.”

Eyebrow raising crimes range from class C misdemeanors for “unlawful use of a laser pointer” or “threatening breach of the peace while on a bus” to a 2nd degree felony for having schedule II controlled substances inside one’s own body.

One interesting quirk is how having marijuana inside your body (a schedule I controlled substance) is only a 3rd degree felony while having other schedule I or II substances is a more severe 2nd degree felony. The fact that marijuana is an exception illustrates the mis-scheduling of marijuana on the level of seriousness in the controlled substance list. If this were not the case then we would expect all substances of a particular class to be treated the same in penalties. Here we begin to see the meddling and social engineering behind these laws; government authority has veered from protection of rights to compelling desired behaviors in order to shape society in the vision of the lawmaker.

Click here to view our compiled master offense list of all state and local criminal offenses in Utah. A few notes regarding this data:

• Utah Offense Table: this lists all criminal offenses for which you could be charged in the state of Utah including the jurisdiction, statute, severity level, and bail amount for each law.
• Key: Guide to the criminal penalties for each level of crime and definition of key terms.
• Sentence Enhancements: how special factors can increase sentencing penalties.
• Penalty Distribution: most common criminal penalty distributions for selected state crimes from CCJJ’s guide.

Click here to view legislative changes to criminal laws and penalties since 2008. A few notes regarding this data:

• Bills for New Crime: List of all passed legislative bills that effect criminal penalties since 2008. The Utah Commission on Criminal and Juvenile Justice (CCJJ) keeps track of bills each year that make changes to or add new crimes or penalties. We have compiled all the reports they have on file into one easy to read sheet through 2013.
• Summary Data: Key statistics on the aggregate effect of legislation on criminal penalties for each year.

A few interesting things we found in the data:

• 10% of legislative bills passed each year alter or create new criminal penalties.
• 290+ bills from 2008 to 2013 created or altered criminal laws.
• On average, the legislature creates 34 new crimes a year (14 felonies, 20 misdemeanors).
• Criminal law changes are projected to yield an average of 5 new prison admissions per year in addition to existing incarceration rates and previous year changes.
• On average, criminal penalty/law changes add $1.5M in new revenue from fines/fees.
• 95% of laws are “against society” or regulatory in nature instead of against persons and property as in the example of assault or theft.
• 193 total offenses—less than 2% of all offenses—are related to violent crimes.
• State violent offenses make up only 5% of all state offenses—138 of 2,650 (most violent offenses are state offenses rather than local offenses).
• 2,650 total state offenses
• 7,753 total local offenses

Total offenses by severity:

• Total Felonies:  399
  • 1st Degree:  36
  • 2nd Degree:  121
  • 3rd Degree:  242
• Total Misdemeanors:  8,470
  • Class A:  338
  • Class B:  4,960
  • Class C:  3,172
• Total Infractions:  1,482
• 5,437 offenses require a mandatory appearance in court.

Take a moment and look through some of the penalties. It may surprise you to learn what sorts of things are “illegal” in Utah. I’m apparently violating the law in my town for “failure to landscape,” a violation which requires a mandatory court appearance and a suggested bail amount of $350. If you have young children who have ever become sick and “propelled a bodily substance” at you, as of last year, they have technically committed a class B misdemeanor—malicious or criminal intent is not a prerequisite. The mere act of propelling alone is an offense—period. (It’s unfortunate that more restraint was not shown in last year’s legislative session.)

Do you live in Salt Lake City? Don’t get caught in violation of your chicken ordinance, or code enforcers might cry foul. “Keeping chickens” is listed as a class B misdemeanor as is the violation of any provision of the Salt Lake City municipal code. Such criminal depravity is punishable by up to $1,000 and six months imprisonment. The master offense table indicates that violation of the Salt Lake City chicken ordinance includes a mandatory court appearance with a suggested bail amount of $583. Moreover, the surcharges to a class B misdemeanor fine can amount to an additional $933, bringing your total chicken violation up to nearly $2000—that’s one pricey fowl!

While you might think it seems facetious to point out the maximum statutory penalty allowed by law for such benign offenses, and while you might also be inclined to argue that enforcement of such regulations to the maximum degree is rare or non-existent, the reality is that such laws are written to give the government a large degree of discretion in enforcement, leaving you without predictability as to what may happen when you violate such supercilious statutes. Such an arrangement gives unelected bureaucrats the ability to hold your liberty hostage as they compel your compliance with the threat of maximum penalties.

The only way to ensure predictability in each case is to eliminate unnecessary or overburdensome laws to begin with. It should never be the case that someone is placed in jail for six months and fined nearly $2,000 simply because of bird ownership. Thus, such a penalty should not exist in statute at all.

What should be done about our voluminous laws?

For starters, conduct should be classified as criminal only when it violates another person’s rights—not because it is a technical offense. In other words, our criminal laws should be related to the malevolent or criminal intent or mens rea of the actor, and not to the mere non-compliance with a nanny state’s intrusive instructions. Prosecutors should be required to prove criminal or malicious intent rather than mere strict liability for offenses. A group of lawyers even suggested this very thing last year before a hearing of the House Judiciary Committee in Congress. By requiring intent for most crimes, we could eliminate the possibility of a sick child being guilty of propelling a bodily substance, as well as a great many other unjust or bizarre prosecutions.

Secondly, the legislature and city councils should repeal and streamline laws. In the 2014 session only 10 of the 484 passed bills were repealer bills and all of them were unanimously supported because they dealt with elimination of obsolete programs or funding accounts. While many laws amend current statute, often eliminating certain provisions, the data show that there are still net increases to the criminal offense list each year. If our lawmakers spent just a fraction of their lawmaking efforts on repealing laws we could make significant progress. Unfortunately, rarely is a lawmaker approached by a bureaucrat with an idea to decrease the size of government. Instead, lawmakers hear about societal problems that could be solved if only the power of government was expanded a slight degree. This is why restraint in making laws is so important.

Finally, lawmakers must exercise restraint in creating new laws and resist the temptation to treat societal ailments with ever increasing doses of government coercion. The consideration before passage of each new law should be to evaluate the reasonableness of imposing the maximum penalty on the most benign offender. If such a result is not reasonable or just, then such a law or penalty should not be created. The worst case scenario should always be considered just as legitimately as the best case scenario, for it is an equally possible outcome even if considerably less probable. Any imposition on liberty should stand before intense scrutiny before ratification and codification. In fact, we recently discussed how Utah Speaker of the House Becky Lockhart urged legislators at the start of the 2013 session to “make sure to take a second and third look at that legislation you are proposing and ask if we really need it? Do we as a legislature really want to be creating so many regulations, complicating so many issues, that the average citizen can’t help but run afoul of the law?” We answer with a resounding no! Too often we don’t need these extra laws.

Cesare Beccaria, an early criminal justice philosopher and Italian jurist at the time of the founding, wrote a treatise On Crimes and Punishments in which he warned against the dangerous error of “those who pretend to reduce society in general to the regularity of a convent.” He explained that the importance of liberty of action was a sacred political principle where “every member of society has a right to do anything that is not contrary to the laws, without fearing any other inconveniences than those which are the natural consequences of the action itself.” He believed this principle “should be defended by the laws, inculcated by the magistrates, and believed by the people” such that man is “only limited by our natural powers” to the end that “our minds become free, active, and vigorous” and “we are inspired with that virtue which knows no fear, so different from that pliant prudence, worthy of those only who can bear a precarious existence.”

It is no coincidence that all across the globe, the thinkers of the 18th Century’s “Age of Enlightenment” have laid the philosophical foundation for the rapid progress and advancement of humanity out of our precarious existence. It was this central idea—that man, when set free, can accomplish anything—that drove the founding of our nation and is a principle that we should revere today. The idea of thousands of laws is contrary to this central idea, and leads to the stifling of imagination, innovation, and life itself. It leads to the “regularity of a convent” as people focus instead on compliance with the mandates of the state instead of advancement for themselves and humanity.

In the absence of an oppressive and intrusive government, man is not without law—many of the most fundamental laws have natural consequences; government legitimately exists to ensure the protection of basic rights in society for the rest. However, the addition of thousands of other laws for social engineering purposes long ago exceeded its limit and has, in the words of Churchill, “destroyed all respect for the law.”