Everyone a Criminal

Article excerpt

Byline: Paul Craig Roberts, THE WASHINGTON TIMES

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Law, which once served a concept of justice, has been replaced by a tyranny that answers only to the conscience of prosecutors.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