Everyone a criminal

TownHall.com ^ | May 7, 2003 | Paul Craig Roberts

[Henrietta]

Be warned: Law, once a shield of the innocent, is now a weapon in the hands of government. Conservatives generally ignore such warnings, feeling that criticism of the criminal justice system plays into the hands of criminals.

Since the 1980s, I have endeavored to make Americans aware of how the legal protections against tyranny are being lost. This work reached its most general statement in my book The Tyranny of Good Intentions, coauthored with Larry Stratton and published in 2000.

Accidents and civil offenses have been criminalized, and the prohibitions against crimes without intent, retroactive law and self-incrimination have been removed. Even the attorney- client privilege is being eroded.

Conservatives are not alarmed by these developments. They continue to support sweeping definitions of criminal liability and harsher penalties. Prosecutors have been granted wide discretion by social welfare regulation, which criminalizes behavior that bears no relationship to moral wrongs (such as murder) which traditionally defined criminal acts. Today, Americans draw prison sentences for unknowingly violating vague regulations, the meanings of which are interpreted by the regulatory police who enforce the regulations.

The fact that law is interpreted and enforced by unelected regulatory authorities violates the requirement of our political system that law must be accountable to the people.

Law, which once served a concept of justice, has been replaced by a tyranny that answers only to the conscience of prosecutors. One might think this development would strike a chord among conservatives. However, intent on chasing down criminals and now terrorists, conservatives have turned a deaf ear to the collapse of the legal structure built over the centuries in order to protect the innocent.

Paul Rosenzweig's Heritage Foundation Legal Memorandum, "The Over- Criminalization of Social and Economic Conduct," thus comes as a welcome development. If conservative foundations are catching on, their considerable influence, even at this late date, might rescue law from tyranny.

Rosenzweig's paper focuses on the destruction of mens rea, the principle that a criminal act requires intent to do harm. This principle has been pulled down by regulatory crimes that impose criminal liability regardless of intent or even of fault.

He illustrates the point with Edward Hanousek, a manager with a railroad in Alaska. Hanousek was imprisoned because a worker, at the worker's own initiative, used a backhoe to move some rocks from a train track and accidentally ruptured an oil pipeline, causing a few thousand gallons to spill into the Skagway River. Hanousek, who was off-duty at the time, was imprisoned for failing to appropriately supervise the worker.

Formerly, the railroad would have faced civil liability for damages resulting from the accident. But the legal distinction between civil liability and felony has been destroyed. Today, American business executives face criminal liability for the unintended acts (accidents) of subordinates. The extraordinary felony liability that executives face is one cause of the sharp increase in CEO pay.

A decade ago, I was invited to speak to the legal policy group at the U.S. Department of Justice (sic). I severely criticized the lawyers for criminalizing accidents in the Exxon Valdez oil spill and for criminalizing civil liability in the Charles Keating savings and loan case. I reminded the DOJ lawyers that in our Anglo-Saxon legal tradition, felony requires intent and personal guilt.

The Justice Department lawyers shrugged off my concerns. They saw their mission as creating novel interpretations of criminal liability to spring upon the unsuspecting.

Novel interpretations of criminality rank high on prosecutors' achievement lists. To indict under crimes that did not exist prior to the indictment is to destroy certainty in law. When felony was ruled by intent, certainty was required in order that people could be aware of acts that constituted criminal violations. Now that intent is no longer required, certainty has lost its relevance.

Today, anyone can be criminally prosecuted for offenses created by the indictment. The justice system has become a lottery. Rosenzweig believes that the use of prison sentences to achieve social goals (such as clean water), regardless of the moral innocence of those imprisoned, destroys the moral opprobrium of conviction and makes criminal law arbitrary.

Arbitrary and capricious law is what the English struggled for centuries to rein in and to protect against. William Blackstone called the legal protections against arbitrary law "the Rights of Englishmen." Our crime is to have dismantled these human achievements.

[Henrietta]

Roberts' writings on this topic are very thought-provoking. It never fails to distress me how unthinking some FReepers are in their zeal to believe that if someone is arrested, they must have deserved it.

[longtermmemmory]

I am always concerned by the use of the letter of the law to violate the spirit of the law.

[ChicagahAl]

I have long felt that the perversion of our justice system is the handiwork of the left. Consider the Soviet Union: Virtually everything was illegal (eg - buying food on the black market, even though there was a shortage of food in the stores). That way the state could arrest anyone at any time. The feminist left would certainly like to make it illegal to be male, so they push to make illegal all the things men do. As conservatives, we are for law and order (Bill Bennett wanted to publicly behead drug dealers), but we should be more for what is just. When "justice" becomes tyranny, there is no justice.

[Pan_Yans Wife]

The danger is that each of us becomes capable of unwittingly breaking the law. Gray areas of the legal system, which the average person has little understanding about, becomes a chasm, waiting to swallow us whole. I never could understand the statement, "Ignorance of the law is no excuse." It seems like the danger has increased tenfold, since the first person coined that phrase.

[microgood]

Great article.

When a large portion of a generation is morally bankrupt, they abuse the system they control. I am especially concerned about propery seizures. All you need to happen is some angry neighbor calling them and telling them you are growing pot or something and they can seize your property even though they find nothing.

Over 40% of all asset forfeitures never result in any charges being filed against the victim. And you have to prove you did not commit the crime. Their justification for seizing it is that it was used in the commission of a crime and therefore the property is guilty of a crime, rather than it was obtained from the spoils of your crime.

I loved Reagan but this is a stain on his legacy.

[Arkinsaw]

Law and order is a tool to provide an environment where Liberty can flourish. But it is not the overarching principle that is our foundation.

[Arkinsaw]

I loved Reagan but this is a stain on his legacy.

Its also a stain on Justice Scalia. Scalia is a hero of mine. He is a rare modern voice for Liberty. But this is his achilles heel, as it is for many conservatives. The country was built on private property rights.

The private property seizures have hurt a lot of innocent people. The policy has led to abuse and even death during a misadventurous raid in California to try and obtain some new park land.

[microgood]

The private property seizures have hurt a lot of innocent people. The policy has led to abuse and even death during a misadventurous raid in California to try and obtain some new park land.

They even caught a judge and prosecutor somewhere in the south a few years ago that were getting properties seized and splitting the loot. They of course went to jail. But since the Feds are the only ones that can order the seizure, states push hard for the forfeitures because most of the money goes into the state coffers. They have an incentive to seize property under any circumstances.

[Pan_Yans Wife]

My 64 year old father would say that he got into many scrapes with the law as an adolescent/young adult. Drinking underage, driving under the influence, being out after curfew, trolling for police "escort", etc. He said, he generally got caught, and the friendly police officer would escort him home, with a quiet lecture and warning... "off to bed, young man", etc.

I think this type of interaction between law enforcement and youth may lead young people to respect authority, to realize that there are rules to protect you... without leaving the young people antagonistic towards authority. (More youth are taught to hate authority these days... their parents instill this deep distrust in them.) Kind of like saying, "Yeah, I got caught, I knew I would... AND, I knew I was guilty." Taking responsibility for their actions, instead of the system putting them through "rehabilitation".

[microgood]

What ever happened to "innocent until proven guilty".

I am not sure how they got around that. Maybe like the IRS does. Yes I did read about Peter Townshend. Another evil that has flourished is the threat of prosecution. Many innocent people plead guilty to crimes to avoid worse ones. In his case he accessed a website that had child pornography on it but did not download any files. He probably caved to some threat and maybe guilty of something. Not sure.

[babaloo999]

Here's the one that was posted yesterday, just in case anyone is interested in the comments.

http://www.freerepublic.com/focus/f-news/906887/posts

And no, I'm not the posting police, it's just FYI.

[Consort]

We have to stop calling it a justice System. It's a Legal System.

[Pan_Yans Wife]

I agree with you that the laws are the root of the problem... that is because it is difficult to respect these very laws. I am certain in any given year that I break more than one law. I may not be aware of it, but I am sure I do.

That being said, there are some laws that are necessary... rape, abuse, murder, etc. And, I suspect many children are hearing from their very parents that these laws, too, do not deserve respect.

OJ Simpson is an obvious case... and I have run across others in my life... the man across the street who beats his wife, teaches his sons that women are trash, and then these sons call the police, "pigs", because the policemen took Daddy away. I do the opposite, "policemen are there to help us". However, I never told my son that policemen are there to protect us, from ourselves.

[microgood]

I fear and hate child pornographers as much as anybody, but do you beleive somebody should have their name ruined simply for accessing a website? Seems like a bad precedent to me. Machiavellianism gone mad.

I agree with your premise totally. The reason I said I was not sure is that he accessed it a lot, and said the reason he was doing was it for research purposes on child molestation. It is one of those sordid cases that may not be the ideal example to make the point we all agree on.

[Squantos]

Comments ?