Baltimore’s Problem, and America’s

Originally published at National Review by Conrad Black | May 6, 2015

The criminal-justice system is a disaster.

It would be ungracious of me not to acknowledge with gratitude the column on Sunday of my old friend Fareed Zakaria, citing several sources, including me, as he recounts the almost unmitigated moral bankruptcy of the U.S. criminal-justice system. As the Freddie Gray riots and indictments in Baltimore continue the fortnightly spectacles of fatal police excess that, with the eager amplification of the media, are creating the world-wide and not entirely false impression that American law enforcement is conducting a sea-to-sea shooting gallery, it is timely to review these problems, which are now decried from right (e.g., George Will) to left (e.g., Katrina vanden Heuvel). They extend from undisciplined police, through a rogue prosecutocracy infested with Torquemadas who can smoke anything past the constitutional heirloom of the grand jury and convict almost anybody by intimidating witnesses to inculpate the targets (with the choice between threats of prosecution themselves and promises of immunity for perjury), to mainly elected state judges dispensing draconian sentences and pandering to the law-and-order lynch mobs, to overstuffed prisons staffed by under-supervised unskilled labor who kill an inordinate number of prisoners in unconstitutionally bestial conditions. This is American justice today, unsuspected by Norman Rockwell, triumphantly championed by morons like Nancy Grace; it is the still largely unnoticed tragedy of many millions of ruined American lives.  TOP ARTICLES1/5READ MORESanders Invokes Obama’s Praise forCuban Education in Defending His Castro Comments

RELATED: Injustice System: Today’s America Is a Landscape of Legal Abuses

In the modern United States, the only reforms are those demanded by adequately large numbers of voters or adequately rich interests. There are 48 million convicted felons in the U.S., and they have tens of millions of relatives and friends, and while most of them are relatively unconnected and demoralized by stigmatization, or just relieved that their legal problems were long ago and they have partly or wholly surmounted them, those suffering the sting of injustice aggravated by gelatinously negative public complacency about the injustice of the system are very numerous and righteously upset. They cannot be far from where the previous waves of mass reform jumped off. Prior to smashing the barricades that restrained them, “uppity n*****s” and “mouthy women” and “angry gays” were starting to chin themselves on the need for militancy, no matter how personally risky, or at the least embarrassing, it might be. Of course, a large number of convicted people were actually guilty of something, unlike, simply by virtue of what they were, African Americans, women, and gays, but many innocent people have been convicted, and most have been over-sentenced, and all who have served their sentences are entitled to be heard about the systematic mistreatment that is so widespread in the U.S. justice system.

This is American justice today, unsuspected by Norman Rockwell, triumphantly championed by morons like Nancy Grace; it is the still largely unnoticed tragedy of many millions of ruined American lives.

Fareed Zakaria outlined the obvious proportions of the problem in his column: The United States has 5 percent of the world’s population, 25 percent of its incarcerated people, and 50 percent of its lawyers (who account for about 10 percent of the country’s GDP). Prosecutors win 99.5 percent of their cases, about 97 percent without a trial, and the country has six to twelve times as many incarcerated people per capita as comparably prosperous large democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom. No sane, conscientious American citizen can be comfortable with these figures and their implications. In a word, the United States, the people that ordained for itself the Constitution that contains the Bill of Rights, has a somewhat tenuous claim to be a country subject to the rule of law, at least in criminal matters. And crimes include thousands of offenses, including, as George Will pointed out in a column in April, picking up arrowheads on federal lands or driving a snowmobile accidentally onto land protected by the Wilderness Act. Given the innumerable statutes and regulations with criminal sanctions, the mens rea element of guilt has faded and the old principle that ignorance of the law is not an excuse would not now be equitable in many cases.

RELATED: America Desperately Needs to Fix Its Overcriminalization Problem

For obvious reasons, there is a tendency to view the recent interracial police-inflicted fatalities as another manifestation of longstanding African-American grievances. But three times as many white Americans are killed by police and prison employees as non-whites, which confirms that minorities suffer proportionately more abuse from law enforcement, but African Americans and other minorities would short-change themselves, and be unjust to others, if they did not recognize this as an almost equal-opportunity problem, in which the constabulary, justice, and custodial systems disserve everyone, and no one is safe from such abuse. Nor will it quite do to sound the same old note of white insensitivity in high places in the Freddie Gray tragedy in Baltimore. That is a city where the majority in the city proper is African-American, where African Americans are in charge as mayor and chief of police, and majorities of city officials, elected and appointed, are African American. Whatever is judged to have happened in this case, it was not whites killing a non-white. No doubt, that is a factor in some incidents, but it would minimize the proportions of this immense and extremely dangerous problem to see it in these terms only, or even principally.

The whole U.S. criminal-justice system is now an immense problem and it gnaws, every day, at the soul of America.

Americans are promised their day in court, but, because of the public-policy adoption of a goal of unheard-of levels of imprisonment (advocated as passionately by such liberals as Robert Kennedy, Nelson Rockefeller, and Bill Clinton as by such conservatives as Richard Nixon and Ronald Reagan), the system could not possibly try a serious number of these cases, as opposed to just terrorizing defendants into pleading guilty and taking a dive, without completely clogging the system. There has been very little reform legislation in the federal government in recent decades in any field that is based on the traditional motive of people like Theodore Roosevelt and Woodrow Wilson, simply to make things work better (like TR’s Pure Food and Drug Act). Reform is demanded by groups too large or rich to be ignored. Victims of the excesses of the justice system certainly are such a group, but to avoid provoking a schismatic reaction in the country, they must cross all racial and ethnic lines and make it clear that they are not mollycoddlers of crime, and are not calling for indulgence of violent crime, but seek restoration of the Bill of Rights guarantees of due process, the grand jury as a serious filtration process, no seizure of property without just compensation, access to counsel, an impartial jury, prompt justice, and reasonable bail. The plea-bargain system will have to be drastically reformed and cooperating witnesses must not be immune to apparently well-founded perjury claims, and criminal cases should not be heard by elected judges. While this cannot be legislated, the media should rub the sleeping knots of 50 years from their eyes and go back to serving the country — by deploying a free press in service of free institutions, and not competing to lead the lynch mob every time there is a publicized offense.

RELATED: Annals of Injustice: The Libby Case and Other Horrors

Most trial judges should not be ex-prosecutors. Nor should prosecutors have an absolute immunity. The Thompson case, in which a falsely accused man was left in death row for 14 years to the full knowledge of prosecutors, who were ultimately excused from heavy sanctions by a majority on the Supreme Court, was an especially extreme case of this. So was the case against Senator Ted Stevens (R., Alaska), who was electorally defeated on a prosecution the Justice Department knew to be false, and the only serious penalty paid was by a prosecutor who committed suicide. The egregious Patrick Fitzgerald should not get a free pass for securing a conviction of former vice president Richard Cheney’s chief of staff Lewis “Scooter” Libby by misshaping the evidence of Judith Miller.

Sentences should be reasonable and some sort of commission should regularly sift through all the laws and regulations with heavy sanctions, cull and consolidate them, and attach to them penalties that are appropriate and are not just bludgeons used by prosecutors to extort false confessions of guilt and Stalinesque allocutions of self-condemnation. The entire process has become a national degradation that cheapens the value of American citizenship and disgraces the country and its fine traditions, and threatens everyone in the United States, or reachable by its authorities, even though in other countries.

#related#Not the least of the excesses of this careening juggernaut grinding people almost indiscriminately to powder has been its extraterritorial application, in which the State Department frequently gets behind the Justice Department and tries to muscle foreign jurisdictions. A striking example of this was the recent effort, clearly inspired by foreign-policy considerations, to extradite Ukrainian billionaire Dmytro V. Firtash from Austria for alleged bribery in India in a titanium deal that never occurred, but in fact because of his political activities in Ukraine. The indictment coincided with the visit to Ukraine by assistant secretary of state Victoria Nuland, to try to persuade Firtash’s friend, former Ukrainian president Viktor Yanukovych, not to abandon a close political and trade agreement with the European Union. The State and Justice departments denied any such motive, but the Austrian judge found otherwise, and ordered the release of Mr. Firtash, who had posted $130 million. The judge ruled the attempted extradition and trial a spurious abuse of justice and of the reputation of the United States as a civilized and law-abiding country. No one is claiming Firtash has an uncontroversial record in the Ukrainian natural-gas business, but there is no obvious U.S. claim against him.

The whole U.S. criminal-justice system is now an immense problem and it gnaws, every day, at the soul of America. Where has the Supreme Court, the ultimate and always sanctimonious guardian of the Constitution, been while the rights of the people have been gutted? Generations of its justices do not have the excuse of having to face voters whipped up by tele-demagogues and gimcrack politicians. They don’t have any excuse.

— Conrad Black is the author of Franklin Delano Roosevelt: Champion of Freedom and Richard M. Nixon: A Life in Full. He can be reached at [email protected]


The Overcriminalization Debate: A Primer

Originally published at National Review by Jonathan Keim, Skilling v. US, Yates v. US| April 6, 2015

Second to military force, criminal law is the government’s most dangerous weapon. Recognizing its potential for misuse, the Western legal tradition has developed a wide variety of legal barriers to ensure that the punishments and stigmas of “criminal” are applied only to the people that deserve them. In this post, I hope to provide some historical background about some of the contemporary debates about overcriminalization and answer some of the most common questions.

What is “overcriminalization,” anyway?

The term “overcriminalization” usually refers to a constellation of problems with a particular criminal law, ranging from overbreadth to procedural fairness. Critiques based on concerns about overcriminalization will typically argue that the criminal law needs to be refined, narrowed, cabined, or limited in various ways that don’t detract from the central responsibility of criminal law to punish intentional blameworthy conduct.

Concerns about overcriminalization are not, however, the same as the view that criminal punishment is illegitimate or that criminals should get off with light sentences. Such an opinion would find itself at odds with most theories of criminal punishment and basic common sense. Obviously, dangerous criminals should be locked up as punishment, deterrent, and for the protection of the public. Most overcriminalization critiques, rather, are rooted in longstanding principles of the Western legal tradition, many of which go all the way back to Magna Carta.

What kind of problems and principles are you talking about?

Overcriminalization problems typically fall into five categories.

First, the criminal law can punish unintentional conduct. Without a guilty mind, or mens rea, a wrongful act has traditionally been treated as a civil tort rather than a crime. In recent years, however, Congress has increasingly defined crimes without a mens rea, forcing courts to either make one up or assume that Congress intended to punish unintentional acts with jail time.

Second, there are notice problems. The most typical is that a statute is too vague for anyone to know what it prohibits. You might think of this as the reciprocal of the commonplace principle that “ignorance of the law is no excuse” : If the judicial system is not going to accept “ignorance of law” as a defense, criminal laws ought to be sufficiently clear that diligent people can stay out of jail. This calls to mind Suetonius’ account of the Roman emperor Caligula who posted laws in very small letters and in a very narrow place to make the laws as difficult as possible to read. American law, it must be said, does not permit such shenanigans.

The Supreme Court addressed a notice problem in the 2010 case of Skilling v. United States, which raised a void-for-vagueness challenge to the federal “honest-services fraud” statute, which criminalizes schemes to defraud someone of “the intangible right of honest services.” Instead of invalidating the statute outright, though, the Supreme Court narrowed it by construction, declaring that it only covers deprivations of honest services through bribes or kickbacks supplied by a third party who had not been deceived. Only after this drastic narrowing did the Court conclude that the statute was not vague.

Third, and related to the second problem, there is overbreadth: a law may punish conduct that is innocent, socially beneficial, or harmless. This can happen in several ways. A law may be poorly drafted. A law may address a compelling problem at one moment in history, but still be on the books long after the original problem has subsided. The result is that prosecutors gain an enormous amount of discretion as they decide which cases to overlook and which to pursue.

Although prosecutorial discretion is typically used wisely, its sheer scope invites selective prosecutions based on factors like political alignment, popularity, and other non-legal factors. As FDR’s Attorney General (later Justice) Robert H. Jackson put it in a famous speech:

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. . . . It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

Sometimes legislators deliberately pass overbroad laws in an effort to look decisive. This problem arose recently in United States v. Yates (2015), which concerned an obstruction-of-justice law passed to address white-collar crime in the wake of the Enron scandal. There, though, the statute was not used to prosecute an executive who ordered destruction of financial documents or incriminating emails, but a commercial fisherman who tossed out a few undersized fish.

Fourth, there are due process questions. Although the phrase “due process” has been sorely abused by the courts in a substantive sense, procedural due process remains an important limitation on criminal punishment: Property and persons shouldn’t be seized without prior justification, nor may someone be punished without a lawful criminal conviction. These issues come up frequently as part of the discussion of civil asset forfeiture, which I hope to cover in more detail some other time.

Finally, and looming over all these other problems, the sheer scope of federal criminal law raises concerns about whether the Constitution’s allocation of powers between the states and the federal government has been upended. Expansion of the Commerce Clause and other modern trends in post-New Deal jurisprudence have enabled Congress to criminalize virtually anything with only the slightest of nods to interstate commerce, creating something that approximates a general police power. Add to that a ballooning number of federal regulations that regulate the details of modern life (many of which are hooked into criminal offenses) and you have a recipe for nearly unlimited federal power.

There are several more common overcriminalization critiques, such as concerns about excessive punishments and prison reform, but those involve normative discussions that are beyond the scope of this post.

Does all this really go back to Magna Carta? Really?

Not all, but you might be surprised at how much of the Magna Carta is relevant to today’s overcriminalization debate. If you recall, in 1215 a group of angry barons forced King John of England to write down the traditional rights of Englishmen and publish them with the royal seal, thus preventing the notoriously power- and revenue- hungry king from denying them. These rights, later published in a document that we know as Magna Carta, have been considered a definitive proclamation of the rights of Englishmen.

In fact, the drafters of the American Constitution relied closely on Magna Carta for inspiration as they sought to articulate the Bill of Rights. For instance, the Eighth Amendment’s prohibition on “excessive fines” is prefigured by Magna Carta’s article 14:

A freeman is not to be amerced [fined] for a small offence save in accordance with the manner of the offence, and for a major offence according to its magnitude, saving his sufficiency (salvo contenemento suo), and a merchant likewise, saving his merchandise, and any villain other than one of our own is to be amerced in the same way, saving his necessity (salvo waynagio) should he fall into our mercy, and none of the aforesaid amercements [fines] is to be imposed save by the oath of honest and law-worthy men of the neighbourhood. Earls and barons are not to be amerced save by their peers and only in accordance with the manner of their offence.

Some rights declared in Magna Carta raise important questions about the civil asset forfeiture debate (articles 22 and 29): 

We [the King] shall not hold the lands of those convicted of felony save for a year and a day, whereafter such land is to be restored to the lords of the fees.

* * *

No freeman is to be taken or imprisoned or disseised [dispossessed] of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.

If you’re looking for a quick and accessible overview of Magna Carta’s influence on American law, I recommend the Library of Congress’s page about the famous document.

How can we fix these problems?

As the constitutionally-appointed deliberative body for lawmaking, Congress should take the lead on reform. Congress could define a default mens rea for all federal statutes, provide more concrete rules for interpreting unclear laws, and scale back criminalization of regulatory offenses. There are some indications that Congress is taking its responsibility seriously, such as the House’s creation in January of a new procedural rule ensuring that new crimes are reviewed by the Judiciary Committee. Hopefully this will improve the quality of new criminal offenses under federal law. Somewhat more ambitiously, Congress could undertake a comprehensive review of existing federal crimes and fix the problems more comprehensively.

Reform is primarily Congress’s responsibility, but the executive and the judicial branches have some tools, too. The Department of Justice, which initiates all federal prosecutions, could adopt prosecution guidelines that adopt a more cautious posture toward the problems identified above. New guidelines might, for instance, recommend that prosecutors avoid bringing cases where no mens rea must be proven, or that prosecutors not pursue prison time for crimes involving mere regulatory violations. Under Attorney General Eric Holder, the Department of Justice has already taken much more drastic action in the area of drug enforcement, so by comparison, any measures of the kind I’ve suggested would be quite modest.

The judicial branch, for its part, can faithfully apply the rule of lenity and void-for-vagueness doctrines, among other longstanding legal principles that constrain overcriminalization. If excessive judicial deference to Congress is the danger on one side, though, the danger on the other side is that judges begin substituting their idiosyncratic policy judgment s for Congress’s and judicially nullify fully constitutional laws.

The overcriminalization debate is quite complex, so I’ve necessarily skipped over numerous interesting topics in favor of broad strokes. Over the coming weeks and months, I will return to discuss some of these issues in more detail. Stay tuned!