«

»

A Surplus of Law

I finally, somewhat belatedly, read Harvey Silverglate’s Three Felonies a Day. The book is a bit different from the title. It doesn’t actually argue that Americans commit three felonies a day. But it does argue that vague laws, ambitious prosecutors, regulatory complexity and the abandonment of mens rea — the principle that criminal charges should be brought only for intentional violations of the law — have created an environment in which massive swathes of the public are in jeopardy of having their lives, families and fortunes destroyed when they have done nothing wrong. His book show that the awesome prosecutorial power of the Justice Department has forced companies to fork over hundreds of millions rather than let their companies be destroyed (as Arthur Anderson was). It has pressured them into cutting employees loose for dubious criminal and civil prosecution. And he argues that my least favorite federal crime — lying to investigators when not under oath — gives the government the ability to prosecute people who have literally committed no crime. Just ask Martha Stewart.

While Silverglate is very good at detailing the environment that has led to this situation, there is something he has left out, in my opinion. A big contributor to the problem of prosecutorial overreach is that we have created an army in search of a war.

Let me back up about twenty years.

In the early 90′s, we were in the midst off a devastating and seemingly insurmountable crime wave. The crack epidemic shot crime to levels normally seen in third world countries. There were parts of our cities that were completely lawless. Crime was a major issue in the election of ’88 and ’92, with the Presidential candidates vying to see who could crack down hardest.

There were a lot of things we did to fight this surge — some good and some bad. Three strikes laws, more cops, more prosecutors, minimum sentences, more prisons — almost all of which had strong support from the public.

The “problem”, if you want to call it that, is that the crime rate hasn’t just fallen in the last twenty years, it’s completely crashed. The crime rate has fallen to about half of its peak level. We haven’t been this safe since the 1960′s. And yes, even with a recession on, it’s still falling. If you want to call the War on Crime a war, we’re winning.

Some of that is because society righted itself. In Parliament of Whores, one of O’Rourke’s interviewees predicted the drug problem would get better on its own. But at least some part of that drop — maybe the largest part of it — is because of the measures we took when we ramped up the War on Crime.

The problem is that we haven’t ramped those efforts down. Quite the contrary, to judge by the number of prisons and cops. The result is that we have a legal and law enforcement structure designed to deal with a problem at least twice the size of the one we actually have. A system in which cops are judged by arrests and tickets; prosecutors by convictions and sentences.

Nature abhors a vacuum. Something has to fill the void left by the predators we have put in prison. And that something is either crimes of little to no consequences — prostitution, drug use, bringing tylenol to school; or crimes that may not even be crimes such as the white collar prosecutions Silverglate details in his book.

There a million stories that detail the encroachment of our War on Crime into areas it is simply not suited for: the explosion of arrests for marijuana possession in New York; the increasing pressure on prostitutes and shrillness of anti-trafficking rhetoric; school kids being arrested and potentially jailed for extremely minor things; the ruinous and endless persecutions Silverglate details.

Every time we read about one of these outrages, we all ask the same question: ain’t the cops and lawyers got nothin’ better to do? The thing is … I don’t think they do. They are geared to fight a war that they’ve mostly won.

When you have a hammer, everything looks like a nail. When you have a law enforcement structure built to deal with predators, everyone looks like a predator. So SWAT raids intended to deal with well-armed drug gangs are unleashed on small-time pot dealers. Asset forfeiture laws intended to bankrupt billionaire drug lords nab guys transporting church money. Search tactics intended for criminals are unleashed on school kids. Insider trading laws intended to deal with crooks nab cooks instead.

The enemy is in retreat. So why are we bombing the villagers? Because we’ve got to do something to make the public think they’re getting their money’s worth and that we’re serious about criminals. And so … we define criminality down. We create more enemies.

So what should we do? Should we slash police departments and fire prosecutors? I wouldn’t oppose some hiring freezes on either, but that may not be politically tenable with the invertebrate species currently occupying the seats of power. Another solution was suggested to me recently: change the mission. Take cops off of busts and raids and get them out into the community. They shouldn’t be busting petty drug dealers, they should be using them as their eyes and ears to find the truly dangerous. They should never bust a working girl; sex workers could be their greatest ally in saving girls who are really in trouble. Either of these is worth a try.

And prosecutors? Well, they could be lot more like Craig Watkins, the heroic Dallas DA who has ordered reviews of old contested cases and exonerated men who were falsely convicted. They could be more like Pat Lykos, now facing a primary challenge because of her reforms. Or they could be shifted to the defense side, to ensure everyone has competent counsel.

I think we are seeing some daylight. As I noted some months ago, both Chris Christie and Newt Gingrich have lent some support to treatment over jail for drug use (Christie expanding Jersey’s high successful Drug Courts). There is a growing movement among conservatives for prison and prosecutorial reform, with Senator Jim Webb leading the charge in Washington. Some judges are rebelling against sentencing guidelines. And now a majority of the public favor legalizing pot.

But it’s not enough by far. We set a huge machine in motion in the 1990′s. We had no choice; our society was crumbling. But we have to realize that the machine is a bit out of control. And shrinking or diverting it is critical to maintaining any kind of respect for the Rule of Law. Because when the government is arresting kids for high school pranks; when the government is raiding small-time pot growers; when the government is extorting money from businesses, they are not supporting the Rule of Law.

They’re threatening it.

10 comments

No ping yet

  1. Miguelito says:

    A system in which cops are judged by arrests and tickets; prosecutors by convictions and sentences.

    Not only that, but in hard economic times, it seems like too many in local gov’t see the fines from infractions as just another income stream. Look at the fines they seem to give now for anything from simple parking up to moving violations. They decided that in CA (and other states I’m sure) that any moving infraction in any marked construction zone (workers there or not) are automatically doubled (or worse). It almost seems like even criminal cases are throwing more and more fines on people.

    It seems like there’s been a lot of cracking down more on parking issues especially since the economy tanked, at least around where I live.

    Thumb up 0 Thumb down 0

      
  2. Hal_10000 says:

    Well said, Miguelito. That’s a big part off Silverglate’s book — the federal government was able to milk hundred of millions out of these companies. And there is little doubt that street law enforcement in following in those steps. Look at the reports about red light cameras and shortened yellow lights.

    Thumb up 0 Thumb down 0

      
  3. AlexInCT says:

    The nanny-staters assure they can keep their grip on power by making sure they have a legal system that will provide them with ample ammunition and opportunity to use the strong arm of the law to cower or silence anyone that dares to get in their way.

    But if you ask them, they will tell you it is all necessary. See, while they won’t put it in these terms, they feel all these laws are needed to curb bad behavior that their other laws and policies cause in a populous they feel is too dumb to be left to its own devices. It’s the whole concept that people that do not belong to their circle are too stupid to know what to do with freedom that arises from the disastrous outcomes of their attempts to social engineer the left’s idea of heaven on earth. The concept of having people deal with the consequences of their bad decisions & choices is anathema to them.

    Not only that, but in hard economic times, it seems like too many in local gov’t see the fines from infractions as just another income stream. Look at the fines they seem to give now for anything from simple parking up to moving violations.

    The problem is that you think this only happens in bad economic times. That was the intent from the start: give them tools to make money. That they do not abuse this when times are good and revenue comes from elsewhere should not lead you to conclude otherwise.

    Heck, here in CT, in the town of Middletown, during the boom 90s we had a series of well known speed traps on I-90 used by the police to “earn” themselves over $100 million dollars to build a new palace of a police department. If I recall correctly they even had the area set up with construction signs so they could double the fines. They loved out of staters, whom they assumed would not have the time to contest the charges in court and would just pay up, but they didn’t limit their victims to them alone. They even had a great scam where they told you they had clocked you at a speed that would really cause problems but where willing to give you a break if you took a ticket for a lesser speed infraction and paid up .It was quite a surprise to see that as soon as that palace was paid for, the speed traps vanished. That was some seriously lucrative scam they where running there.

    Seriously, I am surprised these blatantly abusive practices have not come back in these leaner times.

    Thumb up 2 Thumb down 0

      
  4. richtaylor365 says:

    I am always leery to enter LE frays like this, but sometimes it is helpful to see “the other side” , not to change minds per say but just to get some perspective. And remember my posts and positions already articulated on traffic cams (against them), onerous fines (way too expensive and unfair), Kelly Thomas (those cops committed murder and need to go to prison) our constitutional rights (preeminent and trumps any governmental authority) and the dangerous trend towards more and more laws (a post written on the subject a few weeks ago).

    The “problem”, if you want to call it that, is that the crime rate hasn’t just fallen in the last twenty years, it’s completely crashed.

    It is inaccurate to think that all the police do is fight or suppress crime. This is like saying all firemen do is fight fires.

    The problem is that we haven’t ramped those efforts down. Quite the contrary, to judge by the number of prisons and cops.

    Budget problems thru out the land have in deed ramped things down. I doubt there is anyone here who can say that their particular city has not been affected and have not cut back on services. And this includes the number of cops on the streets and the number of prosecutors trying these cases. Vallejo, the closest big city to where I live with a crime problem has cut their police dept. by one third over the last 5 years.

    A system in which cops are judged by arrests and tickets; prosecutors by convictions and sentences.

    Tell me, what avocation anywhere is not judged and evaluated by performance? Can you think of any? Naturally if you are hired and employed to do a task or provide a service and you do not execute, how long do you think you will keep your job? And as I stated above, there are many ways cops can stay busy and provide service to the community that does not involve writing tickets and arresting folks. I knew many cops who not only did not like writing tickets but thought the job involved community service, helping people and spent their entire careers in that venue.

    Re: quotas, this is probably the most misunderstood part of LE. Most cities have traffic divisions, guys who don’t do anything but write traffic tickets, so yes, they are “graded” on their production, but that production involves total “contacts” not tickets, any contact with any outcome goes in to the tally. And seriously, any one that spends any appreciable time on the highways can attest that there are many shitty drivers out there so writing even the most egregious infractions, tickets are like shooting fish in a barrel. But for the average beat cop, his job and his contacts with community, a very small portion of that involves punitive enforcement.

    Every time we read about one of these outrages, we all ask the same question: ain’t the cops and lawyers got nothin’ better to do?

    I got nothing to offer here in rebuttal, sometimes I feel the same way and wonder the same thing. But remember that sometimes they are in a specific place performing a specific task because of complaints from citizens in the area. The squeaky wheel does get the grease and folks living on a specific block complain loud enough about speeders or folks living next to a public park complain loud enough about teenage drinking or loud music, the cops are forced to target that area, just something to think about.

    I wouldn’t oppose some hiring freezes on either

    It’ s already going on thru budget cuts in your area.

    But we have to realize that the machine is a bit out of control.

    If you mean the ever growing problem of big (and getting bigger) government intruding more and more into the private lives of it’s citizens, more and more onerous/ambiguous laws being enacted solely for the purpose of either taking money (in the form of fines) or expanding the power of legislators, and the constant erosion/attack on our civil liberties by bureaucrats and governmental apparatchiks, yes, I would agree.

    And shrinking or diverting it is critical to maintaining any kind of respect for the Rule of Law.

    Having a respect for the Rule of Law, not only requires an embrace and an adherence to our civil liberties, but it also mandates a code of conduct and a responsibility by it’s citizens to be good citizens and obey the laws. Any civilized society requires a codification of conduct, a uniform requirement or set of rules documenting what is expected of you if you wish to live under the umbrella of that society’s protection.

    Thumb up 0 Thumb down 0

      
  5. Seattle Outcast says:

    What we have done is turned the police into an oppressive gang force against the general populace.

    Your typical metro police force appears to be operating off the profit motive via forfeiture laws, has ever-more military equipment and mindset, is run by the unions that demand a minimum of oversight by the public, and are expanding despite the tough economy.

    Police stories that make the news invariably seem to be of either the police using excessive/lethal force when it isn’t called for, whitewash investigations of the same, and departments getting rich via legalized theft.

    The police aren’t there to “protect and serve” anybody but themselves in many cases.

    Thumb up 3 Thumb down 1

      
  6. Miguelito says:

    Tell me, what avocation anywhere is not judged and evaluated by performance? Can you think of any? Naturally if you are hired and employed to do a task or provide a service and you do not execute, how long do you think you will keep your job?

    The service and performance that we should judge cops on is the number of tickets given out and/or the money raised by fines?

    It should really be based on if they’re truly serving the public, keeping people safe, etc. Now I know that most of the time this would be pretty damn hard to judge, but having ticket quotas and stuff is exactly the wrong way to try.

    Sorta like judging teachers on a few tests vs how students actually turn out. Where decent scores look great, but kids graduate barely able to read, do math, or think. Or vice versa. Ironically, very similar push-back (from a union too, shocker) to actually try to find a way to properly judge the true performance too it seems.

    Thumb up 0 Thumb down 0

      
  7. Seattle Outcast says:

    Tell me, what avocation anywhere is not judged and evaluated by performance? Can you think of any? Naturally if you are hired and employed to do a task or provide a service and you do not execute, how long do you think you will keep your job?

    This is so fucking easy: any union job

    I’ve seen how it works with unions first hand – performance isn’t a consideration at all, ever.

    Thumb up 1 Thumb down 0

      
  8. Nexus says:

    Ayn Rand wrote about something like this in ‘Atlas Shrugged’. The rules are changed to make it difficult if not totally impossible to make money without breaking the law. The rules aren’t set to be obeyed but to give those in power, who produce nothing, leverage over those that do produce.
    It’s all about power and control, nothing else.

    Thumb up 1 Thumb down 0

      
  9. Miguelito says:

    Speaking of… noticed the trailer for this film last night. They’ve also added an entry for part 2 of Atlas Shrugged so I guess they’re pushing forward with trying to make that. I should try watching part 1 one of these days.

    I also LOLd at the trailer for this documentary (which also showed up in the trailers app recently) because of all the people who were super pissed off and against wind power. No power generation (or company doing business) is good enough for some people it seems. Though I can kind of understand the worry about the strobing effect if a windmill were close enough to you to cause that. Something I’d never thought of before I guess. I don’t believe in the “it makes people go crazy” bit but I can see how it would be annoying as hell.

    Thumb up 0 Thumb down 0

      
  10. Seattle Outcast says:

    Part 1 is very watchable, even if it does tend toward being a bit clunky at places.

    Thumb up 0 Thumb down 0

      

Comments have been disabled.