Criminal Justice

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a just-published Tennessee Law Review article, suggests that maybe the old presumption that individuals know the law is outdated, unfair and maybe even unconstitutional.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:

NEXT: Martin O'Malley: The Challenger Who Dares Not Speak Clinton's Name

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  1. It’s a lot harder to arm twist and manipulate innocent people.

    1. That comment sounds illegal. For that matter, so does this one.

    2. “There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

      -Ayn Rand

      1. You’re alive!

      2. But here villains are 2D cardboard cutouts! No one acts like that in real life!

        To which I say, that is all true, she gave them one more dimension than they actually have.

        1. I usually point out that Bob Dylan couldn’t carry a tune in a bucket, either, but that’s pretty much missing the point.

  2. Mens rea is just SO passe’.

    1. Persons rea.

      Check your privilege you fucking cis shitlord

      1. I check my privilege every 3000 miles.

        1. Wait a minute. If the Dark Lord has to check his privilege every 3K miles, how fucking often is the White Lord required to check his?

        2. I know I should check it every 3000, but I always end up waiting until the warning light goes off.

        3. You win the INTERNETZ! (and the privilege to have me steal and pass off your witty remark as my own)

  3. One of the bedrock principles of the common law is the requirement for mens rea when committing a crime. Simple negligence was never a crime under the common law. For negligence to rise to the level of criminality, it had to be so egregious and obviously dangerous and indifferent that the court could only conclude you intended harm by doing it. The concept is called depraved indifference. The classic examples are things like dropping bowling balls off of the empire state building or designing and building a building using materials or a design that is obviously going to fail and harm someone.

    The regulatory state has thrown that out the window. There is nothing obviously dangerous or wrong about the actions these regulations prohibit. And there is no requirement that the government prove you had any idea the regulation existed or if you did you made a good faith effort to comply. These crimes are strict liability crimes. And that is tyranny and something that the common law rightly rejected.

  4. To solve this problem we need for judges to abandon the presumption that people know the law

    I have a better idea: abandon bull shit laws. Why is there this presumption that the laws should even exist in the first place? Or, if you agree with the intent of the laws, that they are in any way achieving their goals?

    with the charges dropped and legal fees being charged to the government if the jury agrees

    It’s a step in the right direction, but prosecutors will still be playing with someone else’s money, namely the taxpayers’. How about instead, we make prosecutors themselves responsible for the legal fees? If they are too steep, they could always take out insurance. Or, at the very least, fire prosecutors that bring idiotic charges.

    1. “…if you agree with the intent of the laws…”

      The only intent behind the vast majority of these laws is for politicians (and the bureaucrats that support the apparatus) to be able to stand up every 2, 4 or 6 years and crow, “look, I DID SOMETHING!”

    2. Limit prosecution to victims. Most would hire a lawyer, of course, but the idea is to not only eliminate victimless crimes, but to also put some accountability back into prosecution. Don’t give political hacks the power to choose which cases to prosecute and which to ignore.

      1. Back in ye olde days, when crimes were the violation of some identifiable person’s rights, whether the victim wanted to press charges was an essential part of the criminal case.

        Now, all crimes are “failure to obey” the state, so no victim is necessary.

        Doomed, we are. Doomed to the mediocrity, subservience, and misery of the general muck of humanity.

        On the plus side, I’m working up a new batch of cocktail recipes for this summer. Looking at the classics – gimlets, that kind of thing.

    3. Why is there this presumption that the laws should even exist in the first place?

      Because the alternative is anarchy and chaos. Duh.

    4. If you made it impossible to prosecute the laws, it would effectively get rid of those laws. If courts started taking due process seriously and saying strict liability crimes are not consistent with due process, these laws would in many cases be effectively repealed.

      1. Are you brining torts into this?

  5. Or we could, you know, decide that no regulatory agency may pass a permanent law, and require that all regulations expire if not formally ratified by Congress in six months. This would keep the regulators busy re-regulating things dear to their black hearts that Congress wouldn’t touch with a barge pole, and Congress busy considering regulations that (for political reasons) it couln’t just let fade away.

    Now if we could just figure out a way to keep the White House harmlessly occupied…..

    1. This is a fantastic idea. It would make appropriations hearings that much more contentious as well.

    2. All laws should sunset after one year or one session.

      And ot prevent legislators from combining all existing laws into one single new law to speed renewal, require that if any part of a law is found unconstitutional, unclear, inconsistent, or inconsistently enforced, or is otherwise defective, the entire law is immediately null and void.

      1. Since that makes perfect sense for so many reasons there’s not a chance our masters would let it happen.

        1. True dat…

    3. That wouldn’t change anything. Most regulations negatively impact a small number of people, or spread the pain around so that it is too diffuse for any one individual to really feel. Meanwhile, they concentrate the benefits. Passing the burden on to Congress just means that the relevant Congress-people would be the subject of regulatory capture, other than the agencies. And most Congress-people would be so swamped by the regulation authorization bills that they would rubber stamp them without reading them in detail, anyway.

      If Congress had any appetite for this sort of thing it would be outsourcing regulatory control in the first place.

      1. So, you’re tell me there’s a chance we’re fucked?

      2. I dunno, Lynch. Congress uses regulators to avoid accountability by passing vague bills with noble goals, and leaving the dirty detail (which is also politically dangerous detail) to the agencies.

        1. The burden belongs on Congress…”All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” It’s really pretty clear, and it’s right up front.

  6. 3 felonies a day is now 3 felonies before lunch.

    1. More like 3 felonies before breakfast.

    2. Three martini lunch – OUT
      Three felonies by lunch – IN

      I got mine in by 10:30 and I just might add another to today’s list of crimes against the state before lunch.

      1. If one possesses a substance whose possession is a felony, aren’t you continuously committing felonies? Ie INFINITE felonies.

        That, truly, would be peak felonies.

  7. some Christians believe in original sin. Just sayin’.

    1. Considering the counter notion is that you are inherently perfect and God-like. I don’t find the notion of original sin to be intrinsically wrong or evil.

      Most of the newly formed humans I spend time around sin (both in the Christian and libertarian sense) near daily. Ascribing it to one sin of originality or ignorance or imperfection is convenient.

      1. Nick also did a good job of defining original sin: “separation from the divine.” Notice it wasnt defined by specific acts, but as a state of being.

        1. The new “original sin” is separation from government. The more private you are, the more sinful. Salvation can only be achieved by getting as close to the state as possible. Contributing to its success and feeding on its teat are the only virtuous acts; all else is impure. To have a government job is to be a Bodhisattva. To be elected is to achieve Enlightenment.

          1. The new “original sin” is separation from government racism.

            All are assumed to be racists until they have performed some affirmative actions.

          2. No wonder I have hermit like tendencies!

  8. If there’s a reason to believe this nation’s rapid descent into socialist totalitarianism can be stopped or even slowed, let alone turned around, I’d certainly like to see it.

    1. All I thought of was the song Aenima by Tool:

      “Mom’s gonna fix it all soon.
      Mom’s comin’ round to put it back the way it ought to be.”

      I’m sure that wasn’t what you were looking for but it’s what your post summoned up.

  9. The laws of the USA can be defined by only answering 2 simple questions.

    Are you a member of the ruling class?

    Yes: You’re innocent.

    No: You’re guilty.

    It’s just that simple. If you’re not a member of the ruling class, then it’s only a question of what you are guilty of and when we decide to prosecute you for it.

    We’re headed toward a total breakdown of the rule of law. You already see it daily in the behavior of our ruling class. They now just outright defy the rule of law in broad daylight with no fear of being held accountable, while the non-politically connected citizens can be charged with any bullshit crime at any time and be railroaded with no chance of defending themselves.

    1. Won’t be long before the ruling class returns to wearing some type of crown so we’ll all have no excuse for not bowing down as they pass.

      1. Bastille Day

        1. Our own national barber would be helpful.

  10. Law that doesn’t arise naturally and is instead arbitrarily created from undue authority, is no law at all. Hello statutes.

    1. Yep. Law and legislation are not synonyms.

  11. How about this.

    A Constitutional Amendment that reads the following…

    A) Congress may not delegate it’s law making power.

    B) Congress may delegate other agencies in the Federal Government to administer a law and to create a proposed set of rules which will govern how a law shall be administrated and submit those rules to Congress for consideration however they do not go into effect until such time as Congress has voted to approve them

    C) An agency delegated to administer a law may submit proposed rule changes to Congress any time they deem it necessary to amend the rules and regulations necessary to the administration of that law. No new bill is required to be filed

    D) Any rule or regulation approved by Congress which includes within it provisions for new or increased civil or criminal penalties must be approved by a 2/3rds majority of Congress

    1. Why not an amendment that reads as follows:

      All administrative agencies of the United States are hereby abolished, effective immediately.

      1. Why not an amendment that reads as follows:

        All administrative agencies of the United States are hereby abolished, effective immediately.

        there we go

      2. Baby steps.

        requiring that Congress actually vote on the regulations that get created out of the laws they pass is something that can be pretty easily sold and make a lot of sense to a lot of people on both sides of the isle.

        Abolishing 90% of the Federal government right off the bat isn’t.

        1. “Baby steps?”

          Maybe it is time to take off the training wheels from the bicycle?

          Put another way, gradualism sucks.

          1. Does it?

            It’s been working for Progressives since the 30’s

            1. It’s been working for Progressives since the 30’s

              True dat. Before 1930 it was big leaps and bounds. (Antitrust, Prohibition, Federal Reserve, 19th Amendment.)

            2. Yes, you are right in that it has worked for the proggies’ bigger, longer road picture. But that doesn’t mean that there have not been and that there are no progressives who are dissatisfied with the pace. I guarantee you that you know some of that ilk.

    2. C is an obvious workaround to B. You need to clarify that language. As if clear language would make any difference.

  12. Every new law should have to pass as an amendment. Make them work for it.

  13. I tell people who have never been to a law library to go visit one. It’s amazing to see endless rows of books filled with Shit-You-Can’t-Do.

  14. My roomate’s mom makes $74 /hr on the computer . She has been out of work for 6 months but last month her income was $20654 just working on the computer for a few hours.
    look at here now?????????????

  15. “…has erected a Multitude of new Offices, and sent hither Swarms of Officers to harrass our People, and eat out their Substance…”

    I think we have recourse against this?

  16. I look at it this way – if a law is written in such a way that it can only be understood by lawyers, then lawyers are the only ones bound by it.

    Can’t follow a rule if it can’t be understood.

  17. Probably gives “government” greater margin for sticking it’s nose into places and things where it has no damned business. Ever more control of the individual by government is the goal.

  18. We can begin fixing this today. No need to get judges and legislators to do our bidding. Accept jury duty and if the case before you strikes you, in any way, as being an injustice to the accused vote to acquit.
    I imagine there are several hundred such cases in the U.S. each day. For instance, Sheryl answers her court date to plead innocent of speeding. She was going 70 in a 55. It was daylight, dry, she was sober and in control. No claim of reckless driving is presented other than speed on open road.
    The law exists for our benefit. What benefit does convicitng Sheryl lend to society? If any exists it is only a temporal and not real benefit. No loss occured. ACQUIT Sheryl.
    You would have protected liberty. You haven’t nullified the law. The next accused could get convicted if case circumstances indicate. You have denied the system its power over the innocent to apply a circumstantially useless rule.
    The jury was/is intended to be our veto of laws improperly applied or just plain wrong.
    Better a thousand guilty men go free than one innocent go to jail.

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