In pursuing criminal justice reform, however, we must tread carefully.

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Criminal justice reform is an exceedingly rare contemporary issue on which the political left and right can agree. 

In addition to instances of prosecutorial misconduct, the sheer proliferation of criminal laws has created a thicket unfathomable even to attorneys specializing in criminal law, let alone the average reasonable American.  Events this week provided another high-profile example in former Speaker of the House Dennis Hastert.  Whatever the nature of his conduct decades ago while teaching in rural Illinois, Mr. Hastert's alleged violation was simply transferring what federal law considers an excessive amount of his own money from private bank accounts.  

Who even suspected that moving your own legally earned dollars between equally legal accounts somehow violates federal law? 

A recent U.S. Supreme Court decision provides another farcical illustration of just how Byzantine our criminal laws have become.  In Yates v. U.S., federal prosecutors had charged fisherman John Yates with violating the 2002 Sarbanes-Oxley financial sector statute, which included provisions allowing prosecution against anyone who "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object."  And how did the Justice Department claim Mr. Yates violated that law?  By possessing 72 undersized grouper in his boat. 

Fortunately, the Court rejected so tenuous a prosecution.  To her credit, even liberal Justice Elena Kagan labeled the law "bad law - too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion.  And I'd go further:  In those ways, § 1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code."  Well said, and it doesn't help matters that our ever-expanding administrative agencies apply an ever-increasing number of regulations with no direct political accountability. 

The terrifying reality is that overcriminalization threatens all of us because in today's world, nearly anyone can be singled out by overzealous government agents for otherwise morally appropriate activities that somehow violate one obscure legal provision or another.  It's simply a matter of some person in power deciding to target you.  Just recall the YouTube videographer blamed by Barack Obama and Hillary Clinton for the 2012 Benghazi attacks. 

In pursuing criminal justice reform, however, we must tread carefully. 

To understand why, consider the astounding decline in American crime rates over roughly the past two decades.  Tougher laws, policing policies and imprisonment practices account for much of that decline. 

Twenty years ago, demographic trends and two decades of skyrocketing crime rates created expectations that matters would only continue to worsen.  Following urban riots of the 1960s and the hyper-liberal Warren Court, America broadly resigned to more lenient prison terms, the death penalty was prohibited, defendants' rights were expanded and more lenient police practices were instituted. 

The resulting epidemic of crime created a public backlash and get-tough movement.  Mandatory minimum sentences were imposed, courts curtailed defendant-friendly rulings and firearms restrictions upon law-abiding citizens were relaxed.  In the 1990s, even leftist California imposed a "three strikes" law expanding incarceration terms for repeat offenders, up to life terms in some circumstances. 

But perhaps most important, police practices were stiffened pursuant to the late political theorist James Q. Wilson's "Broken Windows" scholarship.  Broadly stated, broken window policing policies target seemingly minor offenses such as public drunkenness, drug use, street harassment, graffiti, excessive noise and other municipal violations.  It also involves "stop and frisk" tactics and longer incarceration for offenses that were often left unpunished during more lenient times. 

The results over the past two decades have proven nothing short of astonishing.  The U.S. homicide rate has been cut in half since 1992, from 9.3 murders per 100,000 people to 4.7.  That is its lowest level since 1963.  Violent crime rates reached 80 per 1,000 in 1993, but are down to 20 per 1,000 today. 

No city represents that improvement than the one most associated with broken windows policing and get-tough policies, the formerly dystopian New York City.  In 1993, the city's murder rate reached 26.5 per 100,000 people, and accounted for almost 8% of all U.S. homicides.  After twenty years of broken window police tactics, the rate has plummeted to 4 per 100,000, tourism has increased, famous public places are safer and the city has enjoyed an economic and lifestyle renaissance. 

Disturbingly, however, two decades of plummeting crime rates have paradoxically allowed a popular sense of complacency to return, at least among political leaders seeking street cred with electoral subgroups or media indulgence. 

Democratic frontrunner Hillary Clinton maligns the very get-tough criminal policies her husband successfully implemented, falsely describing them as discriminatory and unfair.  On the Republican side, people like Newt Gingrich and Rand Paul have expressed similar sentiment.  Rick Perry, who announced a second presidential candidacy this week, told one audience that, "The idea that we lock people up, throw them away, never give them a chance at redemption is not what America is about." 

Although the chance at redemption remains welcome in appropriate circumstances, Perry has it wrong.  Locking some people up and throwing away the key is precisely what played an important role in reducing American crime rates that seemed beyond improvement just two decades ago.  America is a much safer place today than it was just twenty years ago due to tougher criminal justice policies, and both New York and Baltimore have recently witnessed alarming increases in crime after restraints on police tactics were imposed. 

So while overcriminalization and prosecutorial abuse should rightfully be targeted, we must tread carefully, lest we invite a return of crime rates whose reduction constitutes one of the most astounding and positive developments in recent American history.