How Too Much Regulation Hurts America's Poor
From 1970 to 2017, the number of words in the Code of Federal Regulations (CFR) nearly tripled from 35 million to over 103 million. This increase in regulation reduced economic growth and lowered Americans’ incomes, and now new evidence shows that regulation has especially harmful effects on the country’s low-income residents.
Too much federal regulation has piled up in America, Republicans and Democrats have been equally culpable in adding to the rulebook
Decriminalize the Average Man
If you reside in America and it is dinnertime, you have almost certainly broken the law. In his book Three Felonies a Day, civil-liberties lawyer Harvey Silverglate estimates that the average person unknowingly breaks at least three federal criminal laws every day. This toll does not count an avalanche of other laws — for example misdemeanors or civil violations such as disobeying a civil contempt order — all of which confront average people at every turn.
An article in the Economist (July 22, 2010) entitled "Too many laws, too many prisoners" states,
Between 2.3m and 2.4m Americans are behind bars, roughly one in every 100 adults. If those on parole or probation are included, one adult in 31 is under "correctional" supervision. As a proportion of its total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan.
By contrast, in 1970, less than one in 400 Americans was incarcerated. Why has the prison population more than quadrupled over a few decades? Why are you, as an average person and daily felon, more vulnerable to arrest than at any other time?
There is a simple answer but no single explanation as to how the situation arose or why it continues to accelerate out of control. The answer: a constant flood of new and broadly interpreted laws are criminalizing entire categories of daily life while, at the same time, the standards required for arrest and conviction have been severely diluted. The result is that far too many people are arrested and imprisoned for acts that should not be viewed as criminal at all or should receive minimal punishment.
In some cases, the violated laws are so obscure, vague, or complicated in language that even the police are ignorant of them. In other cases, outright innocence is not sufficient to escape the brutality of detention.
What Path to Justice?
Even thinking about how to shift a government system toward freedom or justice can be exhausting. The penal system is particularly daunting because its raw brutality seems to leave no room for reason. Fortunately, the best approach may be to address the penal system's precursors: the legislatures that create laws, the law enforcement and judiciaries that impose them. Without fundamental change at the early stages, effective change at the final stage of imprisonment is unlikely.
"The penal system is particularly daunting because its raw brutality seems to leave no room for reason."
Libertarianism has evolved sophisticated theories of what constitutes a proper justice system and how to implement it. One of the most popular theories is based on restitution, rather than retribution or punishment. Restitution is the legal system in which a person "makes good" on a harm or wrong done to another individual and does so directly; if you steal $100, then you pay back $100 and reasonable damages directly to the victim of your theft. You do not pay a debt to society or to the state by going to prison. You do not undergo "punishment" other than the damages assessed. You make your victim "whole" — and, perhaps, a bit more for his trouble.
Restitution is inherently self-limiting in how much the perpetrator is processed by the system. Beyond what is necessary to guarantee that the harm or wrong is repaired, there is no need for a perpetrator to relinquish any of his rights. A thief need not be caged to pay back $100 plus damages; all he needs to do is pay it back. There is no need for the currently huge prison industry nor the degradation of society that accompanies it.
To accomplish this, legal scholar Randy Barnett advocates sweeping away the entire criminal justice system. In its place, he proposes to establish a broadened civil-court system that adjudicates civil liabilities and damages. Many critics object to the pure restitution model; for example, they claim restitution cannot adequately redress crimes like murder. Whatever the merits of such objections, it is clear that restitution can address the great majority of harms and wrongs. Moreover, if an action required the presence of an actual victim whose person or property had been injured, then most current laws would fall off the books. Prisons would be spacious.5
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