Paul Rosenzweig and Brian Walsh, eds., One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty, Washington, D.C.: The Heritage Foundation, 2010, 268 pages, $14.95.
A good case can be made that over-criminalization of the law is among our most serious national problems. True, our economic troubles are deep and may reduce us to a poor, strife-ridden nation like Greece. But it also is a travesty when people who have not done anything wrong deliberately — and often have not done anything wrong at all — can be subjected to vicious military-style raids, tried before judges who don’t seem to care about injustice, and then sent to prison.
Most Americans are aware of our government-caused economic debacle, but very few realize how badly our legal system has been perverted. That’s why I strongly recommend One Nation Under Arrest. You will be outraged at the injustices the authors present. You may find yourself thinking, “This seems like the way people were treated in the Soviet Union. America should be different.”
The essays in the book are filled with well-documented cases where prosecutors have terrorized and ruined people who had harmed no one, their “crimes” consisting of accidents, inconsequential violations of regulations, conduct that ran afoul of ridiculous “zero tolerance” policies, and more. The real criminals are the nameless, hyper-zealous government officials who benefit from the abuse of power but are never held to account for it.
The editors and writers argue that the root of this problem is the erosion of one of the most fundamental distinctions in our legal tradition, the distinction between crimes and torts. Under common law, no one could be charged with a crime without proof that he acted with a guilty mind — the mens rea requirement. That is, the person charged had to have meant to do wrong.
Now, mere accidents can lead to criminal prosecution. One of the cases discussed involved Edward Hanousek, a supervisor on an Alaska construction site. He was responsible for a rock quarrying operation when a backhoe operator accidentally hit and ruptured an oil pipeline, causing oil to spill into a river. At the time of the accident, Hanousek was not on duty.
Federal authorities prosecuted Hanousek under the Clean Water Act, accusing him of the “crime” of failing to supervise adequately and thus causing a discharge of pollutants. Hanousek was sent to prison for 6 months for not having prevented an accident when he was not even on the scene. If someone else’s accident can land you in prison, are any Americans safe?
Another reason Americans are endangered by malicious prosecution is the profusion of laws, many of which are written vaguely. In his excellent essay “Blameworthiness and Intent,” Cato Institute scholar Tim Lynch quotes James Madison:
It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.
Sadly, the Supreme Court has allowed Congress and state legislatures to enact criminal laws that turn on what judges and juries think is “unreasonable,” “excessive,” or other imprecise terms. Lynch also argues that the old legal maxim “Ignorance of the law is no excuse” needs to be jettisoned (at least in criminal prosecutions). He writes: “it is wholly inappropriate in a labyrinthine regulatory regime that criminalizes activities that are morally neutral.”
One Nation Under Arrest will make you angry and frustrated. You will be angry over the horrible mistreatment of honest people by government officials who seem to lack any sense of decency. You will be frustrated by the realization that almost no politician discusses the need to ratchet down our over-criminalized society.
Rosenzweig, Walsh, and the contributors may be tilting at windmills, but theirs is a message that Americans desperately need to hear.