Go Directly To Jail: The Criminalization of Almost Everything.

Vol. 15 No.3 (March 2005), pp.242-245

GO DIRECTLY TO JAIL: THE CRIMINALIZATION OF ALMOST EVERYTHING, by Gene Healy (ed). Washington, D.C.: The Cato Institute, 2004. 192pp. Hardcover. $17.95. ISBN: 1-930865-63-5.

Reviewed by Christopher E. Smith, School of Criminal Justice, Michigan State University. Email: smithc28@msu.edu.

When examining a volume prepared and published by an institutional entity known for having a particular perspective and espousing specific political values, it may be difficult for the reader to avoid applying a heightened sense of skepticism and caution. It is easy to fear that a perspective-driven book, especially one with a tone of advocacy, will lull an unwary reader into accepting biased evidence and unsubstantiated assertions. I have no doubt that I consciously approached this book with heightened skepticism because it was published by the Cato Institute. However, my skepticism – or that of any other potential readers – should not prevent this book from finding its audience. Is it provocative? Absolutely. Yet it is valuable nonetheless. In fact, this book reminds me of what can be refreshing about a book from a place like the Cato Institute. There is no hidden agenda. There is no unintentional masquerade by authors who seem to lack awareness about their own perspectives and values. The criticisms of government and law contained in GO DIRECTLY TO JAIL are very forthright and direct, as are the values that drive these criticisms.

GO DIRECTLY TO JAIL contains six previously published articles including one by the book’s editor, Gene Healy, a senior editor of the Cato Institute, who also wrote the “Introduction.” The hyperbolic subtitle of the book, “The Criminalization of Almost Everything,” provides a nutshell summary of one of the book’s main themes. The attention-grabbing title and subtitle perhaps do a disservice to the book because the articles also actually include discussion of important and complex issues, such as federalism, judicial discretion, and the moral dimensions of criminal law.

The articles are true to the mission of the Cato Institute in several respects. They espouse libertarian themes ranging from the purported over-regulation of business, to the diminution of individuals’ constitutional rights, to the perversion of justice through excessive prosecutions and sentences. As indicated by these thematic examples, the book cannot be classified as espousing either a “liberal” or “conservative” viewpoint. For example, liberal politicians are criticized for the criminalization of business activities through environmental regulations, while conservative politicians receive criticism for actions that lead to excessive prosecutions and punishments. Healy’s article asserts, for example, that “President Bush’s initiatives [for prosecuting gun crimes] suggest that, where it counts, political expediency will trump respect for federalism” (p.100). The articles are also consistent with the Cato Institute’s mission in their conscious tone of advocacy. Although [*243] the articles tend to be weighted toward providing criticisms of current laws and policies, several articles also take the admirable next step of providing concrete suggestions for reform.

The volume begins with Erik Luna’s very brief article, “Overextending the Criminal Law,” presenting examples of silly criminal laws and introducing glimpses of arguments that are discussed more fully in subsequent articles, such as the costs of over-regulation and the desirability of keeping mens rea as a central element of criminal law. “The New ‘Criminal Classes: Legal Sanctions and Business Managers,” by James V. DeLong, criticizes punitive regulations with special attention to environmental regulations and the prosecution of business managers for environmental and financial matters. DeLong argues that expansive regulatory schemes produce excessive complexity, diminish the role of intent for purposes of punishing misdeeds, produce excessive intrusiveness by government, and diminish certain constitutional protections. He suggests several specific reforms related to these issues.

The article by Timothy Lynch, “Polluting Our Principles: Environmental Prosecutions and the Bill of Rights,” uses examples that are similar to those in other chapters, but Lynch focuses on the diminution of rights in prosecutions based on regulations. His article highlights issues related to regulatory searches, culpability without fault, double jeopardy, and self-incrimination. His discussion illuminates the ways in which regulation-based enforcement moves through processes that do not provide the same constitutional protections as those available in traditional criminal prosecution. Lynch also makes specific suggestions for reform.

While the articles by DeLong and Lynch focus primarily on regulation related to environmental protection, Grace-Marie Turner’s “HIPAA and the Criminalization of American Medicine” raises similar issues concerning Medicare and Medicaid. Taken together, these three articles present forceful criticisms of the consequences of imposing criminal penalties as a means of oversight and accountability of activities – land use, business operations, medical billing – that traditionally have not been subject to the moral condemnation and punitive sanctions attendant to the application of criminal law. All of these articles provide interesting facts and provocative examples to make their points. For many of us who teach criminal justice-related courses by focusing on the statutory penal code and attendant prosecutorial processes and individual rights, these chapters provide valuable material that can help us expand the range of issues that we discuss.

There are, however, elements within each chapter that raise questions about whether the authors are providing a comprehensive picture of the topics that they discuss. For example, some of the brief, anecdotal examples of outrageous prosecutions and punishments for people who have – seemingly – done nothing wrong make one wonder whether there is more to the story underlying each particular case. The authors are conscientious about presenting citations to sources, so readers can follow up on any examples that are of particular interest. When two authors cite the same [*244] example or one author uses a single example more than once in an article, this raises questions about whether problematic cases are numerous or whether these examples merely present a small number of the most unrepresentative and rare worst-case scenarios. As with other advocacy-based writing, there are also moments when the reader may wonder if an author has resorted to unsubstantiated, hyperbolic statements. For example, Turner says that “[m]any of the nation’s 650,000 physicians are living in fear that they could face armed federal agents, prosecution, and even jail time because of the dangerous new trend of criminalizing the practice of medicine” (p.74). How do we know if this statement is true? How many is “many”? What evidence is there that they are “living in fear”? Perhaps such statements are true, but it is not clear that Turner or the other authors have presented enough empirical evidence to substantiate claims about the extent to which expanded criminalization creates adverse consequences.

A more important question is whether the authors believe that pollution, financial misconduct, medical billing fraud, and other targets of regulation are important, pervasive, or harmful problems. The authors highlight problems with current laws and make reform proposals, but they do not devote significant attention to the underlying issues, such as water pollution and Medicare fraud, that contributed to the development of the regulatory schemes in the first place.

The final two chapters in the book focus on the implementation of specific criminal justice policies rather than expansion of criminal law. Healy’s article, “There Goes the Neighborhood: The Bush-Ashcroft Plan to ‘Help’ Localities Fight Gun Crime,” criticizes the Project Safe Neighborhoods (PSN) program through which federal prosecutors work with local officials to prosecute people for gun offenses. Healy provides a very useful brief history of federal involvement in criminal justice before presenting a forceful lamentation about the demise of federalism as illustrated by the PSN program. The book’s final article by Erik Luna, “Misguided Guidelines: A Critique of Federal Sentencing,” analyzes problems associated with federal sentencing guidelines. More so than the earlier ones, the final chapter focuses on a subject that has received significant attention from other scholars in various books and articles. Luna’s presentation is valuable because it highlights important issues and provides striking examples of individual cases that raise questions about the desirability of sentencing guidelines. This chapter is an abridged version of an article that was originally published in 2002 so it does not include consideration of the recent upheaval affecting sentencing guidelines based on Supreme Court decisions concerning the necessity of fact-finding by juries, rather than judges, in the determination of sentencing factors.

GO DIRECTLY JAIL is a useful volume that can help to expand professors’ and students’ understanding of the criminal sanctions attendant to regulatory violations. The book provides many provocative examples that will generate discussion, and it also provides concrete suggestions for reform that can be the focus of consideration and debate. The conscientious use of citations can help [*245] interested readers investigate questions that arise from the authors’ advocacy orientation, extreme examples, and occasional hyperbolic statements. Most of the topics discussed in this book are neglected in standard works on criminal law, so the authors provide a valuable service by expanding readers’ awareness of important issues. Whether or not one sympathizes with the authors’ libertarian values, the book provides useful information and achieves its goal of provoking readers to view these issues from a critical perspective.

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