She thought it was a good deed; the law said otherwise, and 67-year-old Sandra McFeeley learned she could face two years in prison and a $10,000 fine. For pruning.
Deputy Police Chief Rick Watson said his officers had grounds to make the arrest because the parks department filed a report of damage. The police incident report lists the damages as “vegetation” and “clean up/removal” and alleges $4,500 worth of property damage—enough to make the charge a felony. Although many of her neighbors don’t see what the big deal is, others who live along the greenbelt are furious at McFeeley. They want the wild greenbelt preserved. They want the law enforced.Dallas police recently charged McFeeley with felony criminal mischief for cutting back branches and overgrown vines on the city property down the street from her home in Oak Cliff, Texas. Like so many other ordinary Americans who have been arrested, prosecuted, and even jailed for running afoul of the multitude of statutes and regulations that seem designed to trap the unwary, McFeeley was shocked to find herself in violation of the law.
A Growing Trend
The city of Dallas isn’t alone in protecting its citizens from armed and dangerous gardeners. Several communities across the country have laws regarding trees and shrubs located in what is considered city property or city right-of-way. A suburban homeowner near Seattle found out the hard way that trees he thought were on his property weren’t. He cut down three big-leaf maple trees and pruned or topped 20 others on what turned out to be county-owned property adjacent to his.
Now the county is considering filing criminal charges of malicious mischief. As a result, the hapless homeowner could face jail time and a fine of $195,000.
“People need to know the city simply will not tolerate this type of behavior and will enforce the law to the fullest extent it can,” Bellevue, Washington, Mayor Grant Degginger said.
Gardening shears aside, literally thousands of laws exist that most people don’t know about and that penalize conduct few would ever imagine was criminal. As the American Bar Association reported a few years ago, there are now so many laws that “there is no conveniently accessible, complete list of federal crimes.” Add to this the approximately 300,000 federal regulations, state laws, and local ordinances, and it’s a wonder we’re not all in prison.
“Criminal law has become a vehicle for social change instead of the maintenance of social order,” said Edwin Meese III, a former U.S. attorney general and author of the book One Nation Under Arrest. “The United States Code today includes at least 4,450 offenses that carry a criminal penalty—a one-third increase since 1980.”
The Standard for Criminal Offenses
Even though many such ordinances and regulations are little more than institutionalized harassment, communities and agencies continue to proliferate the censorious finger-wagging of these so-called offenses and the criminal penalties they carry. Never mind that these statutes fail in one major requirement: They do not provide for mens rea, or criminal intent.
This provision has long served an important role in protecting those who do not intend to commit wrongful or criminal acts from prosecution and conviction. Mens rea elements, such as specific intent, willful intent, and knowledge of the specific facts constituting the offense, are part of nearly all common law crimes. It’s a way of protecting society, since, without this element, honest citizens would be at risk of falling into traps and being victimized and criminalized by poorly crafted legislation and overzealous prosecutors.
Such victimization could be one reason that more than two million Americans are currently locked up. Incarceration was once intended to be a punishment for the most dangerous, violent offenders who had caused serious harm to others. By sending them to prison, we were supposedly saying that the most severe crimes must result in the most severe penalties, and we hoped to deter these and other like-minded individuals from committing heinous crimes in the future.
Instead, we find the scope of offenses that require imprisonment steadily increasing, which in turn has strained the limits of the criminal justice system. Thousands of people have been locked up for nothing more than committing a mistake and have, as a result, become tax burdens on their fellow citizens. And as prosecutors spend time and resources plucking the low-hanging fruit of these hapless “offenders” whose behavior would not be considered criminal by most reasonable people, the real criminals go unpunished.
“Laws So Voluminous That They Cannot Be Read”
Next time the urge to write another law or regulation overcomes otherwise sane and diligent policymakers, let’s hope they reach instead for a copy of James Madison’s The Federalist Papers. And let’s hope that as they read, they pay close attention to the following:
“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood . . . or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?”
And what of Ms. McFeeley? Although the park department is no longer pressing the case, she wants her name cleared, and she wants to keep working in the neighborhood. But she’d better find a good lawyer first.
Kathryn Wiley is a writer-researcher with Justice Fellowship, an arm of Prison Fellowship dedicated to criminal justice reform.