Posted on 05/06/2003 9:41:44 PM PDT by JohnHuang2
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Law, which once served a concept of justice, has been replaced by a tyranny that answers only to the conscience of prosecutors.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.
We sure as heck are! At least this one is.
State legislators in particular come up with more baloney than Oscar Meyer.
All accidents are criminalized. Everytime your kid gets a boo-boo you become a child abuse investigation.
The world has gone nuts! They are giving tickets for not having your lights on when it rains!
No seat belts? Gimmee some money!
Wait till you have a bad day and get multiple violations of some bs laws that had nothing to do with anything but someones ability to do it to you, because they can.
Alaska is looking better all the time.
Some try.
The best thing that could happen in this country would be for congress to spend several years doing nothing but repealing laws/regulations. It should not take an impossible amount of time to become familiar with the laws and regulations we live under. With the CFR growing by thousands, if not tens of thousands of pages a day, it is an impossibility for any one person to keep up.
Personally, I think it's time to give our government a low-level format and reinstall the operating system (the Constitution) which has, like MSwindows become corrupted with cruft over time.
The reason why YOU (and almost everyone else apart from people born in coma) did illegal stuff is that laws became vast, complex and contradictory.
In addition to it the general public out of frustration with the stress of free market life is eager to punish, jail, bomb, burn, execute anyone it can. So we get the marvel of the modern world - the two million inmates prison industry which is growing robustly.
Here's a hint, try figuring out what's illegal.
Start with your income tax code and work your way down.
The republics die when their elites become corrupt, decadent and greedy and the lower classes become a mob.
Thus Spake [Nietzsche's] Zarathustra:
[...] Fretted conceit and suppressed envy--perhaps your fathers' conceit and envy: in you break they forth as flame and frenzy of vengeance.
What the father hath hid cometh out in the son; and oft have I found in the son the father's revealed secret.
Inspired ones they resemble: but it is not the heart that inspireth them-- but vengeance. And when they become subtle and cold, it is not spirit, but envy, that maketh them so.
Their jealousy leadeth them also into thinkers' paths; and this is the sign of their jealousy--they always go too far: so that their fatigue hath at last to go to sleep on the snow.
In all their lamentations soundeth vengeance, in all their eulogies is maleficence; and being judge seemeth to them bliss.
But thus do I counsel you, my friends: distrust all in whom the impulse to punish is powerful!
They are people of bad race and lineage; out of their countenances peer the hangman and the sleuth-hound.
Distrust all those who talk much of their justice! Verily, in their souls not only honey is lacking.
And when they call themselves "the good and just," forget not, that for them to be Pharisees, nothing is lacking but--power![...]
BUMP!
True enough. The other primary killer of a republic is when the people learn of the ability they have to vote themselves moneys out of the public purse. There is a huge class of people that will vote to enslave others to provide for their leisure. Democrats pander to this mentality to garner the votes of the non-productive class. This pandering also neatly dovetails with their use of rivalry and prejudice to set one group against another and thus keep them in bondage and on the plantation.
This could be dealt with, I think, in the long run, if the Republicans did not similarly lust for the power and money inherrant in what the system that our republic has degenerated to. I believe that the symbol that should be adopted by both major parties would be a portrait of Janus.
You describe the danger from the lower classes. Upper class can also abuse the system by buying/financing candidates and buying/lobbying elected or non elected officials.
The most productive class is the middle class, presumably.
Republic means - Res Publica - Common Good or Commonwealth. It dies when the groups or individuals care only for their own.
I kept reading, hoping to find examples of what the author meant by this. Didn't find any.
This may be true - but it's also true that many criminals get off scott free because of technicalities.
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