Our Founders understood full well the importance of making sure that government officials were bound by the law in the same way as everyone else. The British and French kings routinely jailed people whom they disliked. The term “carte blanche,” which means “white sheet,” referred to the King of France’s habit of giving his friends signed arrest warrants with a blank spot where the name of the arrestee should be. These warrants could be used to jail anyone simply by filling in the name.
The Founders insisted that “due process” be followed before anyone could be imprisoned or have property taken away. They wanted to outlaw abuse of government authority which was common everywhere in the world at the time.
The fundamental rights granted by the Constitution have served us well for lo these many years; we tamper with them at our peril. Despite the Founders’ best intentions, however, America is accumulating increasingly bitter experience of abuse of government power.
Eliot Spitzer abused his office as attorney general of New York when he attacked AIG. Their chairman, Alan Greenberg, knew that AIG had done nothing illegal, fought back, and made Spitzer look bad.
This wouldn't do - Spitzer wouldn't get elected governor if people realized he'd brought so many false charges. He told AIG board members he'd criminally charge them, personally, unless they got rid of Greenberg, just as the mafia threatens to break your leg if you don't go along with them.
When Spitzer successfully hounded AIG into ditching Alan Greenberg, the rating agencies dropped their rating on AIG's debts. Given that Greenberg had founded the firm and was the only one who understood it, his departure did indeed increase AIG's risks, so this action was only sensible.
Equally sensible and predictable was the result: AIG's stock plummeted, destroying billions of shareholder equity. Everyone who'd bought insurance from AIG panicked and they needed a bailout every though their loans were performing well. Spitzer went on to become governor, but he was hounded out of office when it was revelaled that he'd patronized a high-priced call girl ring.
It's unusual for federal authorities to pursue such matters, but somehow the Feds decided that Spitzer's victimless dalliances were worthy of their attention. Were they egged on by someone he'd offended?
Regardless of why the Feds trashed Governor Spitzer, the incident shows that none of us, no matter how well-connected, is safe. There are so many laws that it's nearly impossible not to break something. The government can even destroy a lowly plumber if it's inspired or goaded to dig hard enough.
Mens rea, which is Latin for "guilty mind," is an important part of the "due process" which our Constitution requires before anyone could be convicted of a crime. People can be fined for offenses such as speeding regardless of whether they know the speed limit, but as these actions are defined as misdemeanors, no guilty mind is necessary. We all rightly regard speeding tickets as not even remotely being a crime.
When someone smashes into your house and steals something, it's pretty clear that he intended to commit a crime; we treat breaking and entering with the seriousness it deserves. In cases involving Byzantine government regulations, in contrast, it can be hard to convince a jury that the defendant intended to commit a crime that the jurors themselves have never heard of and can barely understand.
The right way to deal with laws that nobody knows about, nobody can figure out, and which anyone can accidentally trip over, is to get rid of them. Alas, that would be admitting to making a mistake, which our elites won't do. It would also decrease government power. Not gonna happen!
A law that can't achieve convictions in court is no law at all - so to "solve" the problem, Congress has been removing mens rea protection.
Our elected representatives have chosen to not only define violating an agency's administrative rules as a crime, they also say that the agency doesn't need to verify whether the person intended to commit a crime. The Wall Street Journal states that the federal criminal code occupies 27 feet of shelf space. This makes it physically impossible for anyone, even lawyers, to absolutely know what's a crime and what's not.
This makes bureaucrats happy - the more "criminals" they catch, the more money they can ask for next year. Having rule-violations defined as crimes also makes them seem more important. Like CPS agencies, they've been given perverse incentives to boost their statistics. They catch "criminals" by turning honest mistakes into crimes.
Once their rules carried criminal penalties, the agencies quite logically asked for, and got, permission to set up their own police forces. If you get a Federal SWAT team bashing in your door, the Journal reports it can come from the Environmental Protection Agency, the Labor or Education departments, the National Park Service, the Bureau of Land Management or even the National Oceanic and Atmospheric Administration which forecasts weather.
Agents from NOAA, in fact, along with the Fish and Wildlife Service, raided the Miami business of Morgan Mok in 2008, seeking evidence she had broken the Endangered Species Act trading in coral.
The agents had assault rifles with them, and the case documents indicated her house and business records had been under surveillance over a six-month period, says Ms. Mok. Under the 1973 law, the departments of Interior and Commerce (home to NOAA) must write regulations to define what is endangered and how it must be protected. One of those regulations specifies coral. ...
Ms. Mok says she showed that her coral had been properly obtained. She paid a $500 fine and served one year of probation for failing to complete paperwork for an otherwise legal transaction.
Because Congress had exempted their rules from mens rea, NOAA didn't have to show that Ms. Mok intended to break their rule. They merely had to show that she hadn't done the paperwork correctly. That's why Ms. Mok was fined and put on probation - instead of being treated as a mistake, improper paperwork all by itself was a criminal act which could have earned her jail time.
The Journal also told of Lawrence Lewis, a building maintenance engineer who went to jail when a blocked toilet made sewage overflow into a creek. He worked at a nursing home where elderly residents often flushed adult diapers down the toilets, jamming the system and flooding the facility. Long before Mr. Lewis started work at the home, standard practice was, in emergency situations, to divert overflow into a storm drain to avoid flooding low-lying apartments which housed sick people. Nobody knew that the drain led to the creek.
When a jogger noticed murky creek water on March 29, 2007, the EPA brought criminal charges against Mr. Lewis. His lawyer told him his intentions and his ignorance didn't matter - any violation was a crime regardless of intent, and he'd admitted he's started the pump which fed the storm drain. He pled guilty and went to jail for mishandling a blocked-up toilet.
Given that any offense against any rule can be treated as a criminal matter regardless of intent, it's best to say nothing at all to any government employee at any level. Anything you say will be used against you because the agency wants a bigger budget. Just plead the 5th!
One of the complaints against King George which Thomas Jefferson documented in the Declaration of Independence was that "He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance."
The King's Men were more interested in revenue than in putting people in jail. Convicts don't have income from which to pay taxes and they consumed resources because they had to be fed.
Our feckless Congress is stupider than King George's petty tyrants who at least pursued something worth having: money. By lowering the legal standards for putting people in jail, Congress gives innocent people criminal records which make it difficult to find jobs. This does more than "eat our our substance," it makes it impossible for us to have substance at all for anyone to eat.
Early Roman laws were kept secret by the powerful and were enforced severely against the lower classes. Opportunities for chicanery abounded because only judges were familiar with the law.
After decades of protest, Roman law was finally codified and posted in the forum around 450 BC for anyone to read. We’re submitting once again to the tyranny of effectively secret, unknowable, incomprehensible criminal laws.
King George multiplied petty offices, but our Congress has done far worse. There's no way in which citizens can become familiar with 27 feet of fine print which detains tens of thousands of federal crimes. The only way to restore the concept of justice is to whack government back to size, which fortunately enough, we have ample reason to want to do anyway.
Even before drastic cuts, the first step must be to restore mens rea! It's not unreasonable to fine people for mistakes when they aren't intending to commit a crime, but innocently incorrect paperwork or well-intended actions any rational person might do should never bring jail time.