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Bar News - April 8, 2005

Opinions: Go Directly To Jail: A Book Review


"GO DIRECTLY TO JAIL: The Criminalization of Almost Everything" is a collection of essays on some troubling trends in American criminal justice. I was quite angry and concerned by the time I finished my reading.  This will probably happen with you, too, so please set aside the time necessary to read this short book (151 pages) in one complete sitting. Also, leave some time to write a letter to the editor or to your U.S.  Representative.  You will be that upset.

We all learned in law school a constitutional liturgy that included due process, the right to remain silent, the doctrine of void-for-vagueness, the separation of powers, et cetera, among others.  Since graduating and working hard at establishing our practices, most of us have simply assumed that that liturgy has remained fundamentally unchanged, subject to normal tinkering, and that the basic constitutional constellation remains. 

Wrong.  Guess again.

This book is a harsh reminder that the power to prosecute is the power to destroy.  The several essays make it clear that there has been a profound realignment of constitutional magnitude, a realignment that threatens the most basic assumptions of American justice, and that all this has happened on our watch.

Now, to the specifics:

The Cato Institute's Gene Healy notes in his introduction that the number of federal crimes has increased by one-third since 1980 and these are distributed throughout the 27,000 pages of the US Code and are supplemented by regulations spread through tens of thousands of pages of the Code of Federal Regulations.  He gently notes "federal criminal law has metastasized."  Beyond this mere proliferation of crimes, however, he says that fundamental common law protections, such as the requirement for mens rea and actus reus, have been eroded in the past fifty years.

For example, overreaching campaign finance laws now criminalize "advocacy messages" (whatever those are) that identify a candidate; corporations are indicted for activities that are more properly handled civilly.  He has even found an example of "the criminalization of bad taste" in a bill approved by the Louisiana House Criminal Justice Committee in May 2004:  "wearing pants below ...[the]... waist and thereby exposing... skin or intimate clothing." 

In another example, an off-duty and off-premises railroad "roadmaster" was convicted and sentenced to six months imprisonment under the Clean Water Act for the accidental rupture of an oil pipeline by one of his backhoe operators while clearing rocks off railroad tracks.  In this case, even the person who did the deed itself did so without criminal intent.  This did not bother the US Supreme Court, which refused to review the case.  Justices O'Connor and Thomas were moved to actually join in writing a dissent, an uncommon occurrence, to be sure.

Healy also cites a case in which it was held to be a violation of US law to violate a Honduran law.   The Honduras Attorney General said in an amicus brief that Honduran law was not violated.  The Supremes refused to look at that one, too.

The article "Overextending the Criminal Law," by Erik Luna, notes that  "politically inspired offenses" are now piled on top of already-existing offenses.  For example, the newly defined offense of "carjacking" has special penalties, above and beyond those already offered by the common law offenses of robbery and kidnapping.  He also argues that mandatory minimum sentences and three-strikes sentencing schemes are evidence of the same mindset.  He refers to "the one-way ratchet of law-and-order politics."  As a practicing conservative, I wish I had penned that glorious phrase first! 

Luna notes the propensity of criminal laws, once enacted, to simply remain on the books, even after the problem sought to be addressed has faded away.  He cites the persistence of "anti-dueling statutes" as an example.  "So what?" we might ask, but dueling is not the problem; lingering criminal laws are.

Frankly, we should be more concerned with the extraordinary accumulation of discretion that we have given to our prosecutors.  They now have a veritable smorgasbord of offenses to pick from, even offenses that shouldn't be on the books anymore.  Then they have wide discretion in plea-bargaining the disposition of the offenses they just picked from the smorgasbord.

Each proposed incremental expansion of the prosecutor's discretion should be judged not only by its immediate effect (which is generally good), but its cumulative long-term effect, which may well not be good.  The long-term effect is often to give untrammeled discretion to the prosecutor.  This can lead to draconian threats by prosecutors.  Luna notes, "the sledgehammer of draconian punishment is most disturbing when it is used to coax pleas out of individuals with valid claims of mitigation or even innocence...."

In another article, James DeLong writes about the creation of "new" criminal classes, such as those created by environmental laws for activities that could more appropriately be dealt with in civil actions.  He then writes of "punitive 'civil' enforcement provisions, such as forfeiture...treble damages, punitive damages, debarment from doing business with the government...."

DeLong writes that "darker forces work, as special interests...capture regulatory agencies and processes and use the punitive enforcement powers of the government as the mechanism to transfer benefits to themselves or to enforce pet ideas of virtue."  Sounds like a form of privatized law enforcement, doesn't it?  This is scary stuff and it gets worse.  Since these are civil proceedings, the usual constitutional protections that we all know and love may simply not be available and the private legal costs are outrageous, with downstream economic and corporate effects that simply were not anticipated when these laws were enacted.

DeLong cites the increased complexity of the regulatory systems we have created, so complex that the regulators themselves may not understand the rules they are enforcing. In another example, competing State and federal agencies gave conflicting information.  What's a corporate malefactor to do?

Put these together and you may have, for example, corporate officers who are afraid to carry out their common law and statutory duties.  What does that do to our economic model?  "A corporate treasurer's opposition to a budget request for funds to remedy alleged environmental violations may be enough to impose criminal responsibilities upon her."  Some prosecutors, armed with all this discretion, have been too thoughtful about enforcing these confusing laws and have been criticized in Congress for doing so.  In a situation like this, DeLong says "open-ended prosecutorial discretion will eventually become a shuttlecock of sound-bite politics."

Other betes noir, such as federal sentencing guidelines and HIPPA come in for analysis by the authors of other articles.  All the articles are invariably provocative and well-written.

For $17.95, the 151 pages here are cheap and fun.  Put "Go Directly To Jail" in your beach bag and read it while tanning this summer. (Cato Press, 2004, ISBN 1-930865-63-5) (Gene Healy, ed.). 

After 33 years in the courtrooms of NH, Attorney Larry Gillis of Rye has now applied for "inactive" membership in the NH Bar.  He currently teaches legal research courses on a part-time basis at the college level.  His Web site is:

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