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Sunday, April 10, 2005

Reading List: Go Directly to Jail

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. . .

Posted at April 10, 2005 00:27