David Kirkpatrick

July 27, 2009

Cato’s Tim Lynch on criminal law

Filed under: Politics — Tags: , , , , , — David Kirkpatrick @ 4:53 pm

If you are interested in civil liberties and how criminal law is executed and enforced in the United States, take a few minutes to read Tim Lynch’s testimony before the House’s subcommittee on Crime, Terrorism, and Homeland Security. Lynch is the director of the Cato Institute’s Project on Criminal Justice.

Lynch’s testimony was titled, “Over-Criminalization of Conduct/Over-Federalization of Criminal Law.”

From the link:

Ignorance of the Law is No Excuse

The sheer volume of modern law makes it impossible for an ordinary American household to stay informed. And yet, prosecutors vigorously defend the old legal maxim that “ignorance of the law is no excuse.”4 That maxim may have been appropriate for a society that simply criminalized inherently evil conduct, such as murder, rape, and theft, but it is wholly inappropriate in a labyrinthine regulatory regime that criminalizes activities that are morally neutral. As Professor Henry M. Hart opined, “In no respect is contemporary law subject to greater reproach than for its obtuseness to this fact.”5

To illustrate the rank injustice that can and does occur, take the case of Carlton Wilson, who was prosecuted because he possessed a firearm. Wilson’s purchase of the firearm was perfectly legal, but, years later, he didn’t know that he had to give it up after a judge issued a restraining order during his divorce proceedings. When Wilson protested that the judge never informed him of that obligation and that the restraining order itself said nothing about firearms, prosecutors shrugged, “ignorance of the law is no excuse.”6Although the courts upheld Wilson’s conviction, Judge Richard Posner filed a dissent: “We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn’t mean being able to go to the local law library and read Title 18. It would be preposterous to suppose that someone from Wilson’s milieu is able to take advantage of such an opportunity.”7Judge Posner noted that Wilson would serve more than three years in a federal penitentiary for an omission that he “could not have suspected was a crime or even a civil wrong.”8

It is simply outrageous for the government to impose a legal duty on every citizen to “know” all of the mind-boggling rules and regulations that have been promulgated over the years. Policymakers can and should discard the “ignorance-is-no-excuse” maxim by enacting a law that would require prosecutors to prove that regulatory violations are “willful” or, in the alternative, that would permit a good-faith belief in the legality of one’s conduct to be pleaded and proved as a defense. The former rule is already in place for our complicated tax laws—but it should also shield unwary Americans from all of the laws and regulations as well.9

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