A wholesale transfer of power

This wasn't supposed to happen here

[Reprinted from Issues & Views May 19, 2003]

American law, based as it was in Anglo-Saxon law, once required that before an individual is deemed a criminal he must have acted with an intent to do wrong. To commit a crime, the law required that an individual must both cause (or attempt to cause) a wrongful injury and do so with some form of malicious intent. Paul Rosenzweig, writing for the Heritage Foundation, joins his voice to others who declare that American law today has been contorted to criminalize acts of negligence and even actions that are accidental. In "The Over-Criminalization of Social and Economic Conduct," Rosenzweig describes how criminal law has strayed from its historical roots, even in terms of subject matter.

In the past, criminal law was directed at conduct considered inherently wrong in and of itself, such as murder, rape, robbery. Today, however, criminal law addresses conduct that is wrongful not because of its intrinsic nature, but because it is a prohibited wrong, that is, a wrong created by some legislative body to serve some perceived public good. Rosenzweig claims, " The landscape of criminal law today is vastly different from what it was 100 years ago--so much so as to be almost unrecognizable." Paul Craig Roberts, author of The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice, agrees with Rosenzweig, and says of these "regulatory" crimes:

Prosecutors have been granted wide discretion by social welfare regulation, which criminalizes behavior that bears no relationship to moral wrongs (such as murder) which traditionally defined criminal acts. Today Americans draw prison sentences for unknowingly violating vague regulations, the meanings of which are interpreted by the regulatory police who enforce the regulations.

Following are excerpts from Rosenzweig's research:

What is particularly disturbing about the trend toward diminished intent requirements is that it is exacerbated by a trend toward significantly harsher penalties. Historically, when the courts first considered regulatory laws containing reduced intent requirements, the laws almost uniformly provided for very light penalties such as a fine or a short jail term, not imprisonment in a penitentiary. As commentators noted, modest penalties are a logical complement to crimes that do not require specific intent. Indeed, some courts questioned whether any imprisonment at all could be imposed in the absence of intent and culpability. This historical view has, of course, been lost. Regulatory laws with reduced mens rea [intent] requirements are often now felonies. And even misdemeanor offenses can, through the stacking of sentences, result in substantial terms of incarceration. . . .

The criminal law today is far different from the criminal law of 100 years ago. For regulatory crimes there is, in effect, a standard of near-absolute liability. One is entitled to wonder if contemporary legislators who have enacted regulatory statutes with increasingly onerous criminal penalties have lost sight of a fundamental truth: "If we use prison to achieve social goals regardless of the moral innocence of those we incarcerate, then imprisonment loses its moral opprobrium and our criminal law becomes morally arbitrary." . . .

[G]iven the comprehensive nature of regulation in America society today, the growth of the public welfare doctrine has, in effect, led to the abandonment of any intent requirement for virtually the entire range of commercial, social, and economic activity in the marketplace.

One corollary to the growth of the public welfare offense doctrine is the disappearance of the distinction between tort and crime in American law. The use of the public welfare doctrine to address social goals enlists the criminal law as an agent of social regulation and change. Tort law has been, historically, a private mechanism for compensating for injuries. Affirmative civil enforcement by the government has been seen as a means of enforcing compliance with social norms through administrative procedures or civil litigation--the latter even having a component of punishment by virtue of the proliferation of punitive damages. These systems have been thought, in the past, to suffice in requiring economic actors to internalize the costs of their conduct and avoid imposing those same costs on unwitting external actors.

Now, however, the criminal law is being used in an avowedly instrumental capacity. Identically phrased statutes are often applicable to the same conduct--one authorizing a civil penalty and the other a criminal sanction. In effect, the criminal law, through the public welfare doctrine, has become a tool of socialization, losing its historic character as a system for addressing wrongful conduct. Criminal sanctions for conduct affecting the public welfare have become a reflex answer. The result is a substitution of criminal law for more traditional tort and civil law: There is a "more pervasive use of the criminal sanction, a use that intrudes further into the mainstream of American life and into the everyday life of its citizens than has ever been attempted before." . . .

The final piece of the equation is legislative reliance on the existence of prosecutorial discretion. Broader and harsher statutes may produce bad outcomes that the public dislikes, but blame for those outcomes will lie with prosecutors who exercise their discretion poorly, not the legislators who passed the underlying statute. As a consequence, every incentive exists for criminal legislation to be as expansive as possible.

And in the absence of any judicial check on this legislative trend, the result is a wholesale transfer of power from elected legislative officials to prosecutors who, in many instances, are unelected and not responsible to the public. Where once the law had strict limits on the capacity of the government to criminalize conduct, those limits have now evaporated. Society has come, instead to rely on the "conscience and circumspection in prosecuting officers." Or, as the Supreme Court said in Dotterweich, Americans are obliged to rely only on "the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries" to determine criminal conduct. In effect, the legislative branch has transferred a substantial fraction of its authority to regulate American social and economic conduct to those who have no expertise in the matter: prosecutors, trial judges, and jurors who make decisions on criminalizing conduct without any ability to consider the broader societal impacts of their decisions.

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