Sunday, August 02, 2009

My Current Read: Go Directly to Jail: The Criminalization of Almost Everything edited by Gene Healy

This book is a few years old, but from what I've read, it's still accurate. Criminal law, both federal and state, now reaches into every aspect of a citizen's life. Healy of the Cato Institute responded by editing a volume of essays which address how regulatory power has expanded, and regulatory violations have been turned into crimes.

The authors describe how this threat to the republic emerged and make recommendations on how to remedy this potential calamity. Here are some of the problems that they've pointed out by this point in my reading:

1. The enactment of tens of thousands of criminal laws by regulatory agencies to cover activities that would normally be unregulated, or punished by torts, rather than by prosecution.
2. The promulgation of laws so numerous and so vague that lawyers, let alone laymen, cannot discern their meaning.
3. The elimination of the legal principle of mens rea -- that a person must have evil intent in order to have committed a criminal act.
4. The reduction of Fourth and Fifth Amendment protections for violations of regulatory law.

The authors illuminate Ayn Rand's dire warning:

There's no way to rule innocent men. The only power government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.


BruceA said...

Presumably, Rand's statements about government power do not constitute an endorsement.

I skimmed through the Volokh article, and I've got a few things to add: If you've ever downloaded an .mp3 file (or a .gif file before 2003), if you've installed store-bought computer software on more than one machine, et cetera. Patent and copyright laws were not written for the digital age, and don't easily fit current reality.

Egad, I'm starting to sound like a liberatarian!

bob said...

I think some of the volume of laws comes from the horse trading that congress uses for compromise. It's why every bill has to be hundreds if not thousands of pages long.