‘Status offenses’ limit criminal justice reform efforts

In the U.S., a status offense is defined as an act that is only deemed criminal to a certain class of people, and has traditionally only applied to crimes committed by minors.

If you’re over 21 years old, being in possession of a beer is not a crime, but it is for someone under 21. In the past, some states had drinking ages at 18 while others were at 21, making what was legal in one state a crime in another.

{mosads}When thinking about recent efforts to reform the American criminal justice system from a broader perspective, a great deal of time, effort and money is being invested in crimes that could likely be considered new status offenses for otherwise law-abiding adults. As we consider our high incarceration rates, we need to look at ways to prevent otherwise lawful Americans from becoming criminals through laws that vary widely from state to state.

While many accredit the issue of criminal justice reform to the mass-incarceration arguments presented by Bernie Sanders and the Black Lives Matter movement, one of the most articulate proponents of criminal justice reform is republican former NYPD Commissioner Bernard Kerik. Kerik, who served three years in prison following his conviction of false statements and tax charges relating to failing to claim payments to his nanny and apartment renovations, went on national television April 29, 2015, saying;

“Whether it is the incarceration of young blacks sentenced to draconian sentences for low level, first-time, nonviolent drug offenses, or white-collar, first-time offenders sentenced to tens of years — and even life — in prison, one thing is for sure: We are creating a permanent American underclass of society that is costing the American taxpayers billions of dollars over the reported cost of incarceration. And, considering that the United States incarcerates more citizens per capita than any country in the world, you have to ask yourself: At what cost?”

In addressing this, let’s look at two examples of the modern day “status offense”, from both sides of the aisle.

From the political left, one of the most compelling arguments revolves around the legalization of Marijuana. In 2013, the states of Colorado and Washington both legalized (and regulated) the recreational use of Marijuana. In 2015, Alaska and Oregon followed suit. Now, According to CNN, California, Nevada, Arizona, Massachusetts, Maine, Florida, Missouri and Arkansas all have the legalization of recreational marijuana on their ballot this year. Despite this trend, the DEA decided against rescheduling Marijuana in August, keeping it a federal crime to traffic in or profit from the sale of Marijuana. The DEA cited a bureaucratic issue in its decision not to reschedule, as they rely on the FDA to provide them with studies supporting reclassification to make its decision.

While marijuana is legal to use medically in many states and recreationally legal in others, it’s still against federal law. This conflict creates issues when legal marijuana businesses in states like Colorado or Washington want to save or invest money in banks, ensure that people aren’t taking their products across state lines, etc.  Worse, the federal prohibition of marijuana creates the shadow industry long exploited by violent drug cartels and smugglers.  As long as Marijuana is legal in one place and not the other, there will be criminals profiting on its illicit sale and transport, which increases the potential for nonviolent crimes to become increasingly more violent.

Even though the federal government has clearly debunked claims that people are serving life sentences for smoking or simple possession of Marijuana, the state legalization movement has brought compelling questions:

If the legalization of recreational marijuana use has not created a notable increase in violence, overdose or public health emergencies; then why shouldn’t the federal government be taxing and regulating legal Marijuana on a national level? Either way, if the recreational sale and use if Marijuana is safe enough to be deemed legal in certain states without drawing a major federal enforcement effort, should nonviolent Marijuana traffickers with no other criminal charges be sentenced to lengthy stints in prison? 

Our example from the political right is probably the first and last time any readers will see these two issues associated with one another in the same article. The gun control issue on both sides of the argument revolves around one core issue: gun violence. However, while gun control advocates center around the actual firearm and accessibility thereof as the issue, opponents of gun control argue that there are a myriad of existing laws that are not effectively being enforced. Statistically, legally bought firearms only account for between 3 percent and 11 percent of firearms-related crime.  That means that upwards of 90 percent of gun crimes are committed with illegally obtained weapons.

This issue gets further complicated when you look at the patchwork of gun laws from state to state, and in some cases between different municipalities in some states. For example, look at Washington, DC’s extremely restrictive, convoluted regulations regarding the issuance of gun permits; in where none were issued between 1977 and 2008 until ordered by federal court. In contrast, look at the process in neighboring Arlington County, VA.  While DC’s process is purely discretionary and quite arduous, Virginia’s is rather simple. Similar distinctions can be drawn in New York City and Chicago, where valid state permits from neighboring counties aren’t honored. What makes this a modern day status offense is the fact that all law enforcement agencies issuing gun permits in the U.S. use the same database, the FBI-managed Interstate Identification Index (or Triple-I) is at the heart of every permit application screening and legal firearms purchase, from shall-issue states like Texas to may-issue states like New York.

In 2015, S.B. 498 was introduced for this reason, to establish national reciprocity for legal firearms permits, so that law enforcement can concentrate on illegal weapons traffickers like straw purchasers, or offenders who use stolen firearms to commit crimes. The law has yet to be voted on, but it joins similar bills like HR 923, HR 986 and HR 402 which have yet to be successful in becoming law.  The obvious question raised here is:

If all jurisdictions use the same criminal background database to determine suitability for weapons possession, why do so many jurisdictions prohibit legal gun owners from owning or transporting their legal weapons in/through their jurisdiction?

Consider how my example could apply to legal gun owners in places like New York, where the Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013 legislation passed in a 43-18 vote in the late night hours of January 14, 2013 with no call for public testimony. The act broadened the definition of “assault weapons” and restricted magazine capacities, placing many New York gun owners who had previously complied with intense weapons inspection and permit applications in danger of violating gun laws if they did not come into compliance.

To the many readers on the right may be asking; “who cares, I don’t smoke weed?” or on the left who ask; “Why do people shouldn’t need to own guns to begin with?” I want to pose a question in conclusion:

Do we, as a country that boasts of having the most freedom in the world, want to continue to stock our dangerous prisons with nonviolent Marijuana offenders or legal firearms owners who subjected themselves to screening and regulation; while violent criminals continue to roam the streets?

I am not advocating that every American home have both a gun and a bong. That is a debate best had on “The Joe Rogan Experience” podcast. However, as a proud American who is keenly aware of the sparsity of our law enforcement resources, I stress the need to explore the need, to make the laws fair for all people regardless of race, gender, or the state they reside in.

As long as jurisdictions that border each other have contradictory laws, some of which may also contradict federal law; how is it possible to reform the criminal justice system? If nothing, the marriage equality movement showed the possibility of the three coming together in a national conversation. If we can reform our criminal justice system, we can regulate (and tax) Marijuana and stop passing more and more redundant firearms laws on the under 5 percent of criminal that uses a legal firearm.  Then, as a nation, we can invest law enforcement and correctional resources on criminals who are violent, corrupt, or who prey on others.

Mannes is a national subject matter expert in public safety. He serves as a member of the Peirce College Criminal Justice Studies Advisory Board in Philadelphia and is a Governor on the Executive Board of InfraGard, the FBI-coordinated public-private partnership for critical infrastructure protection. Follow him on Twitter @PublicSafetySME

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