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

February 28, 2008

More than one in 100 jailed in US

Is the US a police state? For the first time in our history more than one in 100 United States citizens are incarcerated.

From a NYT article:

Nationwide, the prison population grew by 25,000 last year, bringing it to almost 1.6 million. Another 723,000 people are in local jails. The number of American adults is about 230 million, meaning that one in every 99.1 adults is behind bars.

Incarceration rates are even higher for some groups. One in 36 Hispanic adults is behind bars, based on Justice Department figures for 2006. One in 15 black adults is, too, as is one in nine black men between the ages of 20 and 34.

The report, from the Pew Center on the States, also found that only one in 355 white women between the ages of 35 and 39 is behind bars, but that one in 100 black women is.

The report’s methodology differed from that used by the Justice Department, which calculates the incarceration rate by using the total population rather than the adult population as the denominator. Using the department’s methodology, about one in 130 Americans is behind bars.

This situation is not cheap. Also from the linked article:

Now, with fewer resources available to the states, the report said, “prison costs are blowing a hole in state budgets.” On average, states spend almost 7 percent on their budgets on corrections, trailing only healthcare, education and transportation.

In 2007, according to the National Association of State Budgeting Officers, states spent $44 billion in tax dollars on corrections. That is up from $10.6 billion in 1987, a 127 increase once adjusted for inflation. With money from bond issues and from the federal government included, total state spending on corrections last year was $49 billion. By 2011, the report said, states are on track to spend an additional $25 billion.

It cost an average of $23,876 to imprison someone in 2005, the most recent year for which data is available. But state spending varies widely, from $45,000 a year for each inmate in Rhode Island to just $13,000 in Louisiana.

The cost of medical care is growing by 10 percent annually, the report said, a rate that will accelerate as the prison population ages.

Sure, a lot those behind bars ought to be there, but are we, as a nation, more criminal right now than any other period of our history? Asinine minimum sentencing rules, three-strikes laws and the utter failure and policy of suck that is the “war” on drugs contribute heavily to this situation.

As a society it would behoove us to remember when we turn a petty problem into a criminal offense (e.g., much of our drug statutes, turning a third-time convicted shoplifter into a felon, sentencing a women to six years for touching an adolescent’s hair) we are actually creating criminals. Maybe hardened criminals if they are forced to do hard time with actual criminals. You know — murderers, rapists, b-and-e specialists, armed thieves, child predators.

Since I’m in Texas I’d throw in cattle rustlers and trespassers, but those types don’t usually make it to trial.