Born Guilty: How the fed govt has replaced Original Sin with its own version of existential guilt


Christians believe in the concept of original sin: Simply by being born you are in a fallen state, separated from the divine. Secular government is racing to catch up by making huge swaths of everyday life subject to all sorts of criminal penalties.

Have you diverted rain water from around a building? Then you might be guilty of a crime. Inadvertently pick up a feather that once belonged to a bald eagle? Same deal. Welcome to the Kafkaesque world of "regulatory crimes," a vast atlas of misdeeds that increasingly covers just about the whole of everyday existence.

Writes the Instapundit, Glenn Reynolds of University of Tennessee, in USA Today:

"Regulatory crimes" of this sort are incredibly numerous and a category that is growing quickly. They are the ones likely to trap unwary individuals into being felons without knowing it. That is why Michael Cottone, in a just-published Tennessee Law Review article, suggests that maybe the old presumption that individuals know the law is outdated, unfair and maybe even unconstitutional. "Tellingly," he writes, "no exact count of the number of federal statutes that impose criminal sanctions has ever been given, but estimates from the last 15 years range from 3,600 to approximately 4,500." Meanwhile, according to recent congressional testimony, the number of federal regulations (enacted by administrative agencies under loose authority from Congress) carrying criminal penalties may be as many as 300,000.

And it gets worse. While the old-fashioned common law crimes typically required a culpable mental state — you had to realize you were doing something wrong — the regulatory crimes generally don't require any knowledge that you're breaking the law. This seems quite unfair. As Cottone asks, "How can people be expected to know all the laws governing their conduct when no one even knows exactly how many criminal laws exist?

Noting that relying on prosecutorial discretion is no corrective, given all the pressures on and tendencies of prosecutors to build up numbers of convictions uber alles. He suggests a fix, though:

To solve this problem we need for judges to abandon the presumption that people know the law, at least where regulatory crimes are concerned, and require some proof that the accused knew or should reasonably have known that his conduct was illegal. Alternatively, Congress should adopt legislation requiring such proof. (And I would favor allowing defendants in any action brought by the federal government — civil or criminal — to have the option of arguing to the jury that the government's action against them is unfair or biased, with the charges dropped and legal fees being charged to the government if the jury agrees.)

And closes with this bon mot:

Law that can't be known is no law at all. 

Read the whole thing here.

Read Harvey Silverglate, author of Three Felonies a Day, on this problem with vague and expansive laws.

And watch Reason's interview with former NYPD commissioner Bernard Kerik, who talks Silverglate and his book by name in this discussion of police militarization and overcriminalization of everyday life: