Tuesday, May 3, 2011

Anthony Cotton on over-criminalization

Attorney Anthony Cotton recently published an excellent essay, “On the defensive: Wisconsin needs to address over-criminalization,” in the Wisconsin Law Journal.  Tony argues that we have criminalized way too much behavior, including a lot of behavior that doesn't even involve a bad intent, or mens rea, and yet other behavior that would be more effectively dealt with through treatment rather than punishment. 

In addition to Tony’s examples, strict liability sex crimes also pose a real problem for the unsuspecting citizen.  For example, in State v. Jadowski, the “victim” not only lied to the defendant about her age, but also had a state-issued identification card proving that she was an adult.  However, after the identification card turned out to be a good fake, the defendant was convicted of sexual assault of a child.  His fate was sealed when the state supreme court prevented him from mounting a defense based on the fraudulent misrepresentation of age by the “victim.” 

Tony’s article and Jadowski, with nothing more, provide a compelling case that we need a new, more constrained criminal code—not only for economic reasons, but also for moral reasons.


  1. Excellent post on a much needed issue. I must have this thought on a daily basis. The only problem with identifying the issue is presenting a workable solution. In all my thoughts on this subject, I keep coming back to how entrenched law enforcement has become as an institution. The "industry" depends on criminalized behavior to survive, pay salaries, justify increased hiring and spending, etc. Ratcheting back on crimes could be likened to hiking taxes on big corporations. Any thoughts on potential backlash from attempting to streamline the criminal code?

  2. Offenders in under age sex cases could easily create forged ID's for their victims. Then getting the victim to accept the ID or planting it on them would also not be difficult. How could a court/jury decide when this was not the case?


  3. lff:

    Good points, but if a couple (an adult and a minor) went through that much trouble, they would probably just keep the relationship secret, and wouldn't get caught anyway. But the key would be that the jury has to decide "intent" and "knowledge" just as they do in any other case. E.g., For battery, did the defendant intend to harm the accuer, or was he acting in self-defense? For criminal property damage, did he intend to break the property, or was it an accident? For reckless endangerment of safety, did his driving put others at risk of great bodily harm or not? These are issues the jury has to deal with in most other types of criminal cases. It's up to them to decide after hearing and seeing the evidence. And, for sex with a minor a person can be sent to prison for decades, so allowing a defendant to, well, defend, is even more important.

  4. gold3nr0ad:

    Great comment. My suspicion is that politicians only get credit when they add laws, not delete them. I also suspect that a streamlined criminal code will never happen, for the reasons you mention. But maybe someone with more insight into the political process will have some better comments for us.