The "Risk" of Liberty: Criminal Law in the Welfare State

By Giuliano, Michael N. | Freeman, September 2008 | Go to article overview

The "Risk" of Liberty: Criminal Law in the Welfare State


Giuliano, Michael N., Freeman


The word crime has come to include an everincreasing assortment of activities that do not fit the intuitive meaning of the word. The law has criminalized behavior deemed risky or undesirable and actions or status having only vague relationships to undefined harms. The lawmaking process under our welfare state is gripped by an incessant need to eliminate risk. This forecloses the possibility of significant liberty.

Within hours of that daily en masse recitation by schoolchildren that references "liberty and justice for all," a certain public dissonance was revealed in Alaska in 1994, when railroad project manager Edward Hanousek found himself under arrest and facing criminal charges and a prison term. The offense putting him in that predicament took place at his worksite while he was off duty. It was only later he would learn he had become a criminal because petroleum was accidentally discharged after a backhoe operator working for a contractor on a railroad rock-quarry project had inadvertently damaged a pipeline.

Because Hanousek managed the project, he was held criminally liable for the accident. He was convicted of negligently discharging a pollutant and punished with a six-month prison term, six months in a halfway house, and six months of supervised release. The Supreme Court refused to consider his appeal, with only Justice Clarence Thomas and Justice Sandra Day O'Connor believing there was a due-process issue meriting the Court's attention.

The legal dangers are not limited to those working in a managerial capacity. Bartending is everywhere a hazardous activity not solely because of unruly patrons, but because bartenders are under the imminent threat of arrest for the sale of alcohol to minors. The location of a particular night's sting operation is the only determinant of which bartender faces the inevitable criminal charge. The purchaser's use of fake identification may, in some circumstances, be a defense for the accused, although he or she might shoulder the burden of proof.

Two bartenders at different establishments, including a 69-year-old woman, were charged in Old Forge, New York, in 2006 after a 20-year-old man they had served later died in a snowmobile accident. These legal actions reflect the governmental view that another person must be ruined for any disaster to be complete.

A corporate executive is similarly liable to prosecution at any moment for "crimes" requiring no guilty mental state and where even prosecutors are unsure of what evidence legally establishes liability for the particular offense. Ambitious prosecutors are often successful at making a name for themselves by extending the reach of the criminal law. We saw then-U.S. Attorney Rudy Giuliani's infamous staged handcuffing and arrest of three investment bankers he accused of insider trading. Former New York attorney general Eliot Spitzer bullied and prosecuted anyone who might serve as public-relations fodder for his quest for political power. (After becoming governor, he was caught patronizing a prostitution ring and had to resign.)

Business transgressions are routinely treated as criminal acts if not by statute, then by practice and interpretation. As Nicole Gelinas of the Manhattan Institute points out, jurors sitting in judgment of Kenneth Lay later admitted their ignorance of the legal standard required for his conviction on fraud charges. They used a standard of negligence when the actual standard for fraud is, at the least, some minimal knowledge and intent.

For another illustration, dare we consider the predicament of a pain sufferer when his doctor fails to adequately relieve suffering because he fears criminal prosecution for recklessly prescribing narcotics? As for those who seek painkillers but who may not wish to see a doctor or receive traditional medical assistance, a charge of criminal possession awaits. Drug prohibition becomes a capitulation to the totalitarian impulse. …

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