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Idea of “Overcriminalization” Analyzed as Lawmakers Tackle Sentencing Reform

Prison cell
Michael Coghlan

When leaders talk about reforming criminal sentencing, some begin to argue that it’s too easy for average Ohioans to break the laws. Statehouse correspondent Andy Chow has more on the topic of what’s been called “overcriminalization.”

  There’s a common project teachers assign elementary or middle school students when the time comes to learn about the Legislative Branch of government.

It asks students to imagine themselves as lawmakers, and while the assignment may vary, it usually finishes this thought: “there ought to be a law that…” and they fill in the blank.

Vikrant Reddy says that becomes a cultural mindset that carries on into adulthood.

“That’s the immediate instinct that people have whenever they see a frustrating story on the evening news - they say ‘well, gosh, there ought to be a law,” said Reddy.

Reddy is with the Charles Koch Institute based in Virginia. He’s a senior research fellow who focuses on sentencing reform. According to Reddy, whenever he talks about sentencing reform another issue, dubbed “overcriminalization”, crops up.

This is the idea of creating a criminal system where it is too easy to break the law. Reddy says this could include over-regulating businesses and burdening people with too many requirements.

Reddy says reducing overcriminalization can help in the effort to reform the sentencing system.

“These kind of—I have a friend who calls them boutique crimes—are definitely something that we ought to look at. There are very, very few people that would think that the threat of incarceration is appropriate for handling this kind of misbehavior,” Reddy said.

Sentencing reform is a big issue to Democratic Representative Greta Johnson of Akron. However, as a former prosecutor, she says she doesn’t think Ohio has a problem of overcriminalization but rather a state with laws that can be misinterpreted.

“I think we’ve done some harm in that—some of the laws aren’t well written and because we don’t ever sort of keep the institutional memory of why a bill was enacted, why a bill was created, we’ll never know some of the intention of these laws—it’s hard to fix them sometimes,” said Johnson.

To Reddy’s point—there have been times when the Legislature has created laws after disturbing news stories get a lot of attention in the media.

The General Assembly passed a bill in 2010 to prohibit collecting bodily substances after a Columbus man was found, repeatedly, obtaining other people’s urine.

Another bill was proposed to make sexual bestiality a misdemeanor after a Richland County man was accused of having sex with dogs.

But Reddy says—most of the time—there are already enough laws in the books to bring charges in such cases. For example, in the bestiality case, the man was charged with breaking existing animal cruelty laws.

“Perhaps there already is a law—perhaps there are many laws—it’s just that the laws are not being adequately enforced and perhaps there are other remedies for certain things beyond law that would be more significant,” Reddy explained.

Johnson does agree that one way of avoiding this problem is for legislators to fight the urge of drafting laws in reaction to current events without thinking it through first.

“When something really terrible happens in our districts the knee-jerk reaction is to create a bill. Let’s make it a tougher penalty or let’s make this a different crime, let’s make this an enhanced level felony. And I see that a lot in the Judiciary Committee - there are horrible things that happen but bad legislation doesn’t prevent bad things from happening,” said Johnson.

Republican Representative and former Ohio Supreme Court justice Bob Cupp of Lima is another big advocate for sentencing reform. He acknowledges that there might be some instances of overly burdensome laws, but it’s important to maintain the purpose behind Ohio’s set of laws.

“The important part of the criminal code is it’s designed to protect the public, to create safety for the public and create safe communities and I would hate to see us whittle away at some things that do just that,” Cupp said.

The representatives say they plan to continue looking into ways of reforming the state’s criminal sentencing system.