When law goes out on a limb
Kay Leibrand, a 61-year old grandmother, breast-cancer survivor and former software engineer, was arrested and nearly went to jail in Palo Alto, Calif., because her hedge of xylosma bushes was more than 2 feet tall.
As part of a "visibility project," Palo Alto has a law making it a misdemeanor to have plants more than 2 feet tall in the strip between the curb and the sidewalk. The city almost never enforces this ordinance. In fact, Leibrand is the only person ever arrested for it, although her well-pruned hedge left visibility unimpeded along her street. Meanwhile, numerous wrongful rhododendrons and criminal crabapples can be spotted around the city.
In a series of letters, Leibrand tried in vain to negotiate with city officials. But on April 3, 2002, the city dispatched two police officers to arrest Leibrand in her home.
Eventually, Palo Alto settled with Leibrand rather than take the case to a jury. To avoid going to jail, Leibrand made a donation to a local tree-planting organization. Now, instead of an attractive row of bushes along Waverly Street, there are little clumps of xylosma stumps.
Mrs. Leibrand's case highlights a troubling trend: the expansion of criminal law far beyond its historically accepted limits. Throughout English and American legal history, criminal laws were limited to intentional acts that caused or attempted to cause real injury. The bad intent and the harmful act were essential elements of a crime. In areas beyond the reach of the criminal law, civil law remained free to protect people from negligence and nuisances.
The tendency to criminalize all kinds of activity overburdens our criminal justice system. Police officers who are dutifully arresting grandma for inadequate pruning aren't available to track down car thieves or investigate homicides.
Overcriminalization also leads to selective enforcement and unfair prosecution. Police and prosecutors generally exercise their discretion to focus resources on enforcing more serious and reasonable criminal laws. But selective enforcement of bad laws leaves the problem festering beneath the surface until some disgruntled neighbor or over-zealous prosecutor decides to ruin someone's life.
See www.overcriminalized.com for other examples.
• Paul Rosenzweig is a senior legal research fellow and Trent England is a legal policy analyst in the Center for Legal and Judicial Studies at The Heritage Foundation.