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October 11, 2004

Conservatives Worry About the Police State Too

Of course you wouldn't think so listening to some. Here's a useful and informative site. Overcriminalized.

The origin of modern criminal law can be traced to early feudal times. From its inception, the criminal law expressed both a moral and a practical judgment about the societal consequences of certain activity: to be a crime, the law required that an individual must both cause (or attempt to cause) a wrongful injury and do so with some form of malicious intent. Classically, lawyers capture this insight in two principles: in order to be a crime there must be both an actus reus (a bad act) and a culpable mens rea (a guilty mind). At its roots, the criminal law did not punish merely bad thoughts (intentions to act without any evil deed) or acts that achieved unwittingly wrongful ends but without the intent to do so. The former were for resolution by ecclesiastical authorities and the latter were for amelioration in the tort system. In America today, this classical understanding of criminal law no longer holds.

The requirement of an actual act of some form is fundamental. As an initial premise, Anglo-American criminal law does not punish thought. For a crime to have been committed there must, typically, be some act done in furtherance of the criminal purpose. The law has now gone far from that model of liability for an act and, in effect, begun to impose criminal liability for the acts of another based upon failures of supervision that are far different from the common law's historical understanding.

Similarly, the law historically has required that before an individual is deemed a criminal he must have acted with an intent to do wrong. Accidents and mistakes are not considered crimes. Yet contemporary criminal law punishes acts of negligence and even acts which are accidental. In the regulatory context, as Justice Potter Stewart has noted, there is, in effect, a standard of near-absolute liability.

Liberty is freedom under the law. The bigger the law, the smaller the liberty. Something has got to change. I would hope that this has more than trickle-down thinking at its root. Surely this idea can be narrowly applied to strictly limit business liability with no other consequences for the common man. But given that the Supreme Court is very likely to review the Constitutionality of the Three Strikes and like Federal Sentencing Guidelines, we may be in for some interesting confluences of opinions.

As for myself, I think that for the most serious crimes, sentencing guidelines make practical sense. But I also believe that Three Strikes is just too radical, and I really cannot stand the politicization of the courts by the executive branch. Taking away the prerogatives of judges to assay the weight of a crime and apply sentences within broad boundaries is just highhanded, if not shady. If you can't trust judges, we're in a world of trouble. I think we should give judges the benefit of the doubt and not hamstring them to the political ambitions of prosecutors. When American justice ceases to be subtle, it ceases to be justice.

All that said, we should protect whistleblowers and get more people into courts. Accellerate jury duty I say. We should have more contact with the judicial branch as citizens. I think we'll all agree in the end that we have more than enough laws to keep our society stable, but that civil litigation is a bit out of control. It seems more like a lottery to me - a way to clog... but I digress.

Posted by mbowen at October 11, 2004 08:07 AM

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Posted by: DarkStar at October 12, 2004 05:10 PM