April 16, 2002

DOJ And The Law’s Decline

The U.S. Department of Justice’s indictment {PDF} of the entire Arthur Andersen accounting firm for the actions of a few is a worse offense against law than the misleading accounting that hid Enron’s debt.

Dramatic evidence of a deteriorating legal culture, the indictment of Andersen contravenes two primary principles of our legal system: (1) guilt requires intent to commit a crime, and (2) people are responsible only for their own acts.

The DOJ’s indictment of Andersen vitiates both principles. Seven thousand people are being held accountable for the actions of three or four. Enron’s accounting practices clearly produced misleading and irresponsible financial reports, but it is not clear that the practices were illegal or a criminal conspiracy.

Doubts did not prevent the DOJ from rushing to make a criminal case out of a civil one.

Proceeding along familiar lines, the DOJ has “turned” David Duncan, the Andersen partner responsible for offloading Enron’s debts onto partnerships, into a witness against Andersen and Enron. Duncan will now largely escape punishment. His testimony will be used to convict whomever the DOJ has targeted.

The DOJ’s disregard for law and justice is shared by the U.S. Supreme Court and by state prosecutors. A decade ago Charles Keating, head of American Continental Corporation, was convicted in a California court for actions of subordinates about which he knew nothing. Keating served more than four years in prison before federal judge John G. Davies ordered him released, declaring Keating’s conviction to be a violation of mens rea (no crime without intent) and the prohibition against ex post facto law.

Federal drug laws also endorse the punishment of innocents. Homes, boats, cars, land, and businesses can be seized if a visitor, family member, customer, renter, or trespasser brings drugs on the premises.

Last month the U.S. Supreme Court extended this injustice to the residents of public housing by upholding the “no tolerance” policy, which allows a public housing authority to evict tenants because of drug activity by other people.

In one case a 76-year-old disabled man was evicted, because his caretaker brought cocaine into the apartment. In another case, an elderly woman was evicted, because her mentally disabled daughter, who lived with her, was found in possession of cocaine in a location blocks away from the apartment.

These extraordinary injustices are tallied as victories in the war on crime.

Fighting crime with crime does not disturb the U.S. Supreme Court. Nor does it disturb the DOJ, the American Bar Association, legislators, governors, liberals or conservatives.

The American public has peacefully come to live under the sway of prosecutors, who indict innocent people for crimes that have not been committed by them or by anyone else.

The precedent-setting case was the DOJ’s criminal indictment of Exxon for an accidental oil spill. In 1989 the Exxon Valdez oil tanker ran aground off the coast of Alaska in Prince William Sound. The DOJ indicted Exxon in addition to the shipping company on criminal charges of dumping refuse without a permit and killing migratory birds without a hunting license.

Everyone knew that $150 million worth of crude oil was not refuse and that Exxon had not run the tanker aground in order to kill birds with crude oil. The DOJ reasoned, correctly, that its vastly overdrawn indictment would coerce Exxon into a record settlement.

The most important change in the U.S. during the 20th century was the metamorphosis of justice from protecting the innocent to income redistribution and special privileges for preferred “victim” groups.

In the 21st century the currency of the “justice system” is no longer justice. U.S. prisons overflow with people coerced into plea bargains by overdrawn and expansive indictments. The new institution of the private prison demands ever more prisoners for a return on investment. The rising tide of inmates is considered evidence that the U.S. is winning the “war on crime.”

No other nation on earth—not even arbitrary and tyrannical China—has anywhere near the same proportion of its people in prison as does the United States. The U.S. will never recover from the malaise of injustice as long as the DOJ sets the example by overdrawing indictments and fabricating charges.

Paul Craig Roberts is the author of The Tyranny of Good Intentions : How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice.