Federal Crimes and the End of Law
What's next, guility until proven innocent?
For the past decade I have focused on the growth of federal criminal law, and in a recent article in Regulation magazine I took a hard look at how this development harms the economy. With the Obama administration’s stated determination to have the Justice Department seek criminal charges in the BP oil spill, I believe we should take a hard look at the entire legal process.
To understand the current situation, remember that at the founding of the United States the only federal crimes were treason, piracy, and counterfeiting. Today there are more than 4,000 federal criminal statutes and 10,000-plus more federal regulations that can be rolled into crimes. In the past 30 years the federal prison population has grown from 20,000 to more than 200,000 and many thousands more are on probation or are awaiting incarceration.
About half the federal prison population consists of people convicted of drug-related offenses, as the drug war has fueled the growth of federal law-enforcement power. While “white collar” offenders are perhaps 10 percent of the federal prison population, this still is a significant number, and what makes it more significant is that many people convicted are not guilty of “crimes” in the historical sense, but simply violated rules they did not even know existed.
Attorney Paul Rosenzweig, in a 2003 Heritage Foundation paper on the growth of federal crimes, wrote:
[T]oday the criminal law has strayed far from its historical roots. Where once the criminal law was an exclusively moral undertaking, it now has expanded to the point that it is principally utilitarian in nature. In some instances the law now makes criminal the failure to act in conformance with some imposed legal duty. In others the law criminalizes conduct undertaken without any culpable intent. And many statutes punish those whose acts are wrongful only by virtue of legislative determination.
The common-law tradition that Americans received from Great Britain was heavily influenced by William Blackstone and his principle that a crime had to be accompanied by a “vicious will” in which the perpetrator both intended to break the law and to harm someone. By changing that principle to one in which prison sentences and fines are imposed simply for breaking a rule, even if unintentionally, the government effectively can turn nearly everyone into a criminal.
In his excellent book Three Felonies a Day, Harvey Silverglate points out that most people who practice a profession commit what could be construed as federal crimes, yet the vast majority of them are not criminals. They simply have run afoul of laws, regulations, or policies set for political purposes.
As the oil from the BP spill washes onto beaches and fouls the Gulf of Mexico, politicians can easily play to public anger by finding clever ways to charge BP officials with federal crimes. After the 1989 Exxon Valdez oil-tanker spill at Prince William Sound, Alaska, the government criminally charged the company for allegedly violating laws regarding migratory birds. However, as Paul Craig Roberts and Lawrence Stratton point out in The Tyranny of Good Intentions, there was no intent — Exxon did not want the spill to occur.
Roberts and Stratton write, however, that Exxon executives had no confidence in the fairness of the “justice” system, so the company pleaded guilty. The current situation is even more perilous, as federal prosecutors today are more bold and creative. There seem to be even fewer constraints on the government than 20 years ago.
We cannot have a free society and a legal system in which federal prosecutors can railroad targeted people into prison. Likewise, if we can be manipulated into cheering when people are convicted on questionable charges simply because they are associated with something unpopular, then we will be poorer and less safe than if government were bound by the original constraints of the U.S. Constitution.
Pingback by Soon We Will All Be Criminals | Conservablogger on 9 June 2010:
[...] About half the federal prison population consists of people convicted of drug-related offenses, as the drug war has fueled the growth of federal law-enforcement power. While “white collar” offenders are perhaps 10 percent of the federal prison population, this still is a significant number, and what makes it more significant is that many people convicted are not guilty of “crimes” in the historical sense, but simply violated rules they did not even know existed. via thefreemanonline.org [...]
Comment by Drik on 9 June 2010:
Saved or created, or invented. In the absence of all of these regulations to enforce, the ranks of the unemployed would be twice as bad as they are now. The federal government is above all else, a jobs program.
Comment by Old BS on 9 June 2010:
The end of Law described ushers in the police state, which we now have fully in place. Since few today seem to understand the function of “Law” the destruction of common law and common sense will proceed. I am sure few if any politicians have ever herd of Bastiat.
Comment by ChrisNJ on 9 June 2010:
Jefferson was right. The natural progress of things is for liberty to yield and government to gain ground. Socialism sings a siren’s song.
We have progressed it seems, from the rule of tyrants to the rule of law – to a tyranny of laws, exploited by those who seek the privilages and perogitives of tyrants.
Comment by James Madison Fan on 11 June 2010:
It seems to me that the author is arguing against the concept of criminal negligence?
Intent plays a part in common law but he fails to mention the caveat that ignorance has never been recognized as a valid excuse if a “reasonable man” could understand his behavior carried risk or was inappropriate.
Not knowing about prohibitions on unsafe fireworks and arson laws does not mean you can avoid prosecution if you launch bottle rockets over a building and it catches fire. The lack of desire to kill does not protect you from Manslaughter charges if someone is killed in your accidental fire.
Notice I said, “Manslaughter.” The law recognized different types of murder. If you planned the murder with malice it is Murder in the First Degree. A murder of passion (found wife in bed with best friend and zorched them both) is Second Degree murder. Manslaughter is unintentional murder where your actions were obviously dangerous and the result was death.
So what about BP? Why is a criminal investigation justified? BP has a reputation for being reckless compared to other oil companies and has spent the past couple of years trying to distance themselves from this image.
Several years ago they had a pipeline that was near the end of its life and they were warned by their staff it could rupture. They retaliated against the staff and did nothing. The pipeline ruptured and oil poured into a lake. Fortunately it was winter and the lake was frozen so the damage was minimal and cleanup was relatively cheap and easy. This time it will not be either.
In regard to this spill specifically there have been reports that the BP executive on site was informed that the rig had been having problems and was told it was dangerous around 6 hours before the explosion occurred. The executive decided to continue because they were losing millions of dollars every day it was inactive. The potential disaster was less of a concern for him than the real loss of revenue. As a result men lost their lives, a multi-million dollar drill rig is a modern art masterpiece sitting a mile below the surface, a couple million gallons of oil is set to befoul coastlines from Florida to Southern Mexico when the hurricanes come, fishing, vacation, and associated industries in these areas will be crushed for at least a year, likely years, possibly decades, not to mention the less easily calculated “green” effects.
If they did this out of ignorance or some sort of misguided noble intent I might have more sympathy but they have a record of doing risky things in an effort to make an extra buck when prudence would have been a better choice for all involved.
Comment by Rich Demanowski on 12 June 2010:
“A free society is one where it is safe to be unpopular.” – Adlai Stevenson
Comment by James Madison Fan on 14 June 2010:
Rich,
It has nothing to do with being unpopular. It about being intentionally negligent.
If you are driving as normal and you hit someone then it is an accident. Sometimes humans screw up.
If you are going a couple miles over the speed limit and hit someone because you couldn’t stop in time then you can be charged with a speeding infraction after the fact. You can also be found at fault in a civil case for damages.
If you are going speeds in excess of 100 MPH or engaging in some other dratically dangerous behavior you can be held criminally negligent because it is so far above the posted speed limit that a “Reasonable Man” would know that any collision at such speeds is likely going to result in death.
There are degrees of culpability based on your behavior. Negative behavior must have negative consequences.