- Healy, Gene, ed.
Go Directly to Jail.
Washington: Cato Institute, 2004.
ISBN 1-930865-63-5.
-
Once upon a time, when somebody in the U.S. got carried away and
started blowing something out of proportion, people would chide
them, “Don't make a federal case out of it.” For most of U.S. history,
“federal cases”—criminal prosecutions by the federal government—were
a big deal because they were about big things: treason,
piracy, counterfeiting, bribery of federal officials, and offences
against the law of nations. With the exception of crimes committed
in areas of exclusive federal jurisdiction such as the District of
Columbia, Indian reservations, territories, and military bases, all
other criminal matters were the concern of the states. Well, times
have changed. From the 17 original federal crimes defined by
Congress in 1790, the list of federal criminal offences has exploded
to more than 4,000 today, occupying 27,000 pages of the U.S. Code,
the vast majority added since 1960. But it's worse than that—many
of these “crimes” consist of violations of federal regulations, which
are promulgated by executive agencies without approval by Congress,
constantly changing, often vague and conflicting, and sprawling through
three hundred thousand or so pages of the Code of Federal Regulations.
This creates a legal environment in which the ordinary citizen or,
for that matter, even a professional expert in an area of regulation
cannot know for certain what is legal and what is not. And since these
are criminal penalties and prosecutors have broad discretion
in charging violators, running afoul of an obscure regulation can
lead not just to a fine but serious
downtime at Club Fed, such as the
seafood dealers facing eight years in the pen for
selling lobster tails which
violated no U.S. law. And don't talk back to the Eagle—a
maintenance supervisor who refused to plead guilty to having a work
crew bury some waste paint cans found himself indicted on 43 federal
criminal counts (United States v. Carr, 880 F.2d 1550 (1989)).
Stir in enforcement programs which are self-funded by the penalties
and asset seizures they generate, and you have a recipe for
entrepreneurial prosecution at the expense of liberty.
This collection of essays is frightening look at criminalisation
run amok, trampling common law principles such as protection
against self-incrimination, unlawful search and seizure, and
double jeopardy, plus a watering down of the rules of evidence,
standard of proof, and need to prove both criminal intent
(mens rea) and a criminal act
(actus reus). You may also be amazed and appalled
at how the traditional discretion accorded trial judges in
sentencing has been replaced by what amount to a “spreadsheet
of damnation” of 258 cells which, for example, ranks possession of
150 grams of crack cocaine a more serious offence than second-degree
murder (p. 137). Each essay concludes with a set of suggestions
as to how the trend can be turned around and something resembling
the rule of law re-established, but that's not the way to bet.
Once the ball of tyranny starts to roll, even in the early
stage of the soft tyranny of implied intimidation, it gains momentum
all by itself. I suppose we should at be glad they aren't
torturing people. Oh, right….
April 2005 