Everyone a Criminal

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Law, which once served a concept of justice, has been replaced by a tyranny that answers only to the conscience of prosecutors.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.

Copyright 2003 Creators Syndicate, Inc.