The Rights Of Englishmen” – The Wrongs Of American Prosecutors
By Paul Craig Roberts

Be warned: law, once a shield of the innocent, is now a weapon in the hands of government.

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 most 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 being eroded.

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Law, which once served a concept of justice, has been replaced by a tyranny that answers only to the conscience of prosecutors.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 Memorandum, “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 fault.

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 accident.

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 Justice (sic). 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 law.

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 its relevance.

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 of Englishmen.”

Our crime is to have dismantled these human achievements.

So someone bitches at conservatives because of all these nit picky go-to-jail-on-a-technicality laws..

...when stupid liberals PASSED the laws in the first place....  

Conservatives and liberals are quite similar in their belief in the method government.  They try to write laws to fit their agenda.  When either group frowns upon something, both will try and "remedy" the situation with legislation.  Conservatives are simply more likely to have reservations in enacting said legislation, due to "liberty" issues.  It won't matter, in the end, they'll pass their own laws just as fast as the liberals will...

[:K]

I am confused?  ou feel that posting this article is a trollish activity? Just what part of the Constitution do you actually object to?  Just what part of the Rule of Law do you object to?  Just what statist think tank do you contribute to?

Hmm... I don't see the link...

No you aren't confused, but are seeing the neo-cons showing their true colors.

I think you can find it on today's update on keepandbeararms.com. Thought I saw it there earlier, but I'm too lazy to check.

CassidyGT, could you post a link to this article, please?

I'm not sure if his editor is doing him a disservice or a favor.

1) It is too friggin' long...is this written in a Law Review rag?
2) He cites one, very poor, example about the backhoe operator's boss being jailed.  I'm sure this is not entirely intentional, but in order to make a judgement, in the realm of MY opinion, I need a lot more information than that which was provided.
3) The captain of the ExxonValdez was criminally negligent.  Plain and simple. IIRC there was one of two things that happened: He was either intoxicated while operating the ship through what is widely considered "treacherous" waterways or He had bestowed the piloting of the ship to an unqualified individual.

The article seems to lack substantive arguments, but rather makes you "leap" from point to point.  Very poorly written -- or if my guess is correct -- very poorly edited.

Either way it is hard to come to terms with his hypothesis with such glaring holes in the body.

Oh well....

"Cut and paste" politics again......[sleep]

You don't read much do you.  

I have seen countless news articles over the years illustrating many indictments similar to the backhoe operator's circumstance.  If you disagree with the idea that the state should held accountable to the law, that is your business.  Although that opinion is incompatible with freedom.  

Cut and Paste politics eh.  Either I could spend time that I don't really have crafting my own article, or I could post one that pretty much sums up a good point.  Maybe you have the time - I don't.

I just thought that the article would be fairly enlightening to those who did not realize just how out of hand .Gov is.  Of which, from what I understand, you are big fan.

Actually, [:K] I read a bit.  This article was poorly crafted, and actually hurt his hypothesis more than helped it.  If you'll notice I specifically critiqued this article, there was no need for me to pull from an outside knowledge base.

For as many words as he chewed up, he succeeded only in showing his ineptness at proving a point.  Much like you continue to do....

You are obviously a "political hack" and likely sit around reading political commentary as entertainment.  Upon completion, you cut and paste the articles you agree with here, with no commentary of your own.  For if you offered comments, you would betray your inability to illustrate your interpretation of the article.  So, for you, it would be much easier to just Ctrl-C, Ctrl-V....

Could you, for once, pick a well written article?

And what statist think tank are YOU a part of? Since that is apparently some sort of degradation in your mind?

I don't even know how to respond to your inane BS Shivan.  You are the type of person who just likes to cause trouble for the sake of causing trouble and frankly, I'm glad I don't know you personally.  I am sure the feeling is mutual.

In future, please do not respond to my posts.  I will offer you the same courtesy.  That way, people who might have an interest in the article may be able to offer further insight and commentary.  Your idiotic responses merely cloud the issue and get in the way of discussion.  

Thank you for your courtesy in advance.

Sir:

My response was SPECIFICALLY addressed to the content of this article.  Further, it is poorly written, and a poor choice for illustrating the points that were attempted to be made within it's text.  Or am I not allowed to voice that particular opinion, since the thread originator is offended by my synopsis of his "cut and paste" job?

The arguments outlined in the article presented are deficient in material evidence to present the case that the people cited were indeed faultless by either negligence or specific intent.

I went on in my first response to recount that the ExxonValdez captain was proven negligent which is a criteria of guilt in a court of law.{Edited to add: This was a criteria before the stated "collapse" of the legal system.}  Specific intent to do harm in a case like that is neither necessary to prove nor any more or less damning.

Thanks.

And the repubs have controlled Congress and the presidency for 2 years now. How many of those laws have they repealed??

How many have they expanded?? [snoopy]

"Pot? This is Kettle, you're black."

Shall we dig up your postings on the Iraqi war for illustrative purposes in this matter?

Agreed.  I think it is more apolitical bullshit that has compromised the system, not one party or the other.  It's the buildup of the layers OVER the Constitution that has created the mess we are in.

My new book:

"How to repeal a law without ending up with egg on your face in an election year FOR DUMMIES"

Yes, you are confused. Refer to your own past posts.


No, I don't "feel" this is trollish. Yes, I "think" posting this article is a trollish activity. Refer to your own past posts. What reasonable arguments have you made on this site to prove otherwise.


I do NOT object to the Constitution itself. I have a sincere wish that the federal government would squeeze itself back into the small part of our lives that it was originally intended to occupy. Let me bare my soul though. I do have two issues with the 14th Amendment, section 1 and the 16th Amendment.


I do not object to the rule of law. Clearly those on the left have a greater disdain for the rule of law. Examples: Waco, Elian Gonzales, Clinton impeachment, 2000 election results...this list goes on. Leftists:" The rule of law applies to everyone equally...except those of us who are above it."

Your pitiful attempt at smearing conservative thought is wishful thinking only. Socialists, like yourself, are the real jack booted thugs. Ever heard of a "rightist" guerrilla? Ever heard of a "conservative" dictatorship? No, because they don't exist.

I really hate being away from the computer all day. I missed all the action.