“The Rights Of Englishmen” – The Wrongs Of American Prosecutors
Be warned: law, once a shield of
the innocent, is now a weapon in the hands of
Conservatives generally ignore such
warnings, feeling that criticism of the criminal justice
system plays into the hands of criminals.
Since the 1980s I have endeavored
to make Americans aware of how the legal protections
against tyranny are being lost. This work reached its
general statement in my book,
The Tyranny of Good Intentions, coauthored with
Larry Stratton and published in 2000.
Accidents and civil offenses have
been criminalized, and the prohibitions against crimes
without intent, retroactive law, and self-incrimination
have been removed. Even the attorney-client privilege is
Conservatives are not alarmed by
these developments. They continue to support sweeping
definitions of criminal liability and harsher penalties.
Prosecutors have been granted wide
discretion by social welfare regulation, which
criminalizes behavior that bears no relationship to
moral wrongs (such as murder) which traditionally
defined criminal acts. Today Americans draw prison
sentences for unknowingly violating vague regulations,
the meanings of which are interpreted by the regulatory
police who enforce the regulations.
The fact that law is interpreted
and enforced by unelected regulatory authorities
violates the requirement of our political system that
law must be accountable to the people.
Law, which once served a concept of
justice, has been replaced by a tyranny that answers
only to the conscience of prosecutors.
One might think this development
would strike a chord among conservatives. However,
intent on chasing down criminals – and now terrorists –
conservatives have turned a deaf ear to the collapse of
the legal structure built over the centuries in order to
protect the innocent.
Paul Rosenzweig`s Heritage Foundation Legal
“The Over-Criminalization of Social and Economic
Conduct,” thus comes as a welcome development.
If conservative foundations are
catching on, their considerable influence, even at this
late date, might rescue law from tyranny.
Mr. Rosenzweig`s paper focuses on
the destruction of mens rea, the principle that a
criminal act requires intent to do harm. This principle
has been pulled down by regulatory crimes that impose
criminal liability regardless of intent or even of
He illustrates the point with
Edward Hanousek, a manager with a railroad in Alaska.
Mr. Hanousek was imprisoned because a worker, at the
worker`s own initiative, used a
backhoe to move some rocks from a train track and
accidentally ruptured an oil pipeline, causing a few
thousand gallons to spill into the Skagway River.
Hanousek, who was off-duty at the
time, was imprisoned for failing to
appropriately supervise the worker.
Formerly, the railroad would have
faced civil liability for damages resulting from the
But the legal distinction between
civil liability and felony has been destroyed. Today,
American business executives face criminal liability for
the unintended acts (accidents) of subordinates.
The extraordinary felony liability
that executives face is one cause of the sharp increase
in CEO pay.
A decade ago I was invited to speak
to the legal policy group at the U.S. Department of
I severely criticized the lawyers for criminalizing
accidents in the
Exxon Valdez oil spill and for criminalizing civil
liability in the Charles Keating savings and loan case.
I reminded the DOJ lawyers that in our Anglo-Saxon legal
tradition, felony requires intent and personal guilt.
The Justice Department lawyers
shrugged off my concerns. They saw their mission as
creating novel interpretations of criminal liability to
spring upon the unsuspecting. Novel interpretations of
criminality rank high on prosecutors` achievement lists.
To indict under crimes that did not
exist prior to the indictment is to destroy certainty in
When felony was ruled by intent,
certainty was required in order that people could be
aware of acts that constituted criminal violations. Now
that intent is no longer required, certainty has lost
Today anyone can be criminally
prosecuted for offenses created by the indictment. The
justice system has become a lottery.
Mr. Rosenzweig believes that the
use of prison sentences to achieve social goals (such as
clean water), regardless of the moral innocence of those
imprisoned, destroys the moral opprobrium of conviction
and makes criminal law arbitrary.
Arbitrary and capricious law is
what the English struggled for centuries to rein in and
to protect against. William Blackstone called the
legal protections against arbitrary law “the Rights
Our crime is to have dismantled
these human achievements.
Craig Roberts is the author with Lawrence M. Stratton of
The Tyranny of Good Intentions : How Prosecutors and
Bureaucrats Are Trampling the Constitution in the Name
of Justice. Click
here for Peter
Magazine interview with Roberts about the recent
epidemic of prosecutorial misconduct.