- The Washington Times - Monday, January 10, 2005

GO DIRECTLY TO JAIL: THE CRIMINALIZATION OF ALMOST EVERYTHING

Edited by Gene Healy, Cato, $17.95, 173 pages

On the lecture circuit, Justice Antonin Scalia is fond of rhapsodizing over the demise of the halcyon era when America was a less litigious country and where judges interpreted rather than made law. “There oughta be a law” was the catchphrase of a day when people who felt slighted by society lobbied their elected officials for legislative rectification instead of racing to the courthouse to declare that their “civil rights” had been violated.

In the criminal-justice system, Justice Scalia’s complaints have been turned on their head with the multiplication and federalization of criminal law brought about by an unholy alliance of law-and-order conservatives and anti-business liberals. Today, while violent crime often goes unpunished, Congress continues to add new, trivial, duplicative offenses to the upwards of 4,000 already on the statute books, as well as untold regulatory “crimes.”

As the Cato Institute’s “Go Directly to Jail” shows, it is now frighteningly easy for American citizens to be imprisoned for actions that no reasonable person would regard as the type of morally culpable behavior for which the serious sanction of criminal law was once reserved. Compiled and introduced by Gene Healy, the book offers essays from a variety of authors who sound the alarm of legislative — rather than judicial — activism run amok.

That is, certain activities that at most merit harsh civil penalties are labeled “criminal,” even where the offender has no intent to commit the offense — or doesn’t know the offense was committed. For example, an off-duty roadmaster was sentenced to six months in prison when a backhoe operator under his charge accidentally ruptured a pipeline while sweeping rocks off a railroad track.

Justice Clarence Thomas, joined by Justice Sandra Day O’Connor in dissenting from the Supreme Court’s refusal to review the conviction, cautioned that “we should be hesitant to expose countless numbers of construction workers and contractors to heightened criminal liability for using ordinary devices to engage in normal industrial operations.”

Beyond this blurring of the line between tort and criminal law, and often in the wake of the public’s demand to “do something,” behavior that has long been proscribed — say, holding somebody up and then stealing his car — is refashioned into a different species of offense (“carjacking”).

And, Mr. Healy points out, these new-age crimes often have the unintentional consequence of drastically eroding our federalism. One tragicomical example of this trend is the Justice Department’s enforcement of state gun laws, which has resulted in the federal usurpation of a type of crime that the Supreme Court decided in 1995 was constitutionally left to the states.

That case, United States v. Lopez, hailed by conservatives as the culmination of the 10th Amendment’s triumphal return to American jurisprudence, now seems to have been its effervescent zenith.

Mandatory minimums for drug crimes and anti-recidivist (“three-strikes”) statutes further enhance prosecutorial power and distort the rationally conceived gradations in criminal punishment. As University of Utah law professor Erik Luna puts it, “When the criminal sanction is used for conduct that is widely viewed as harmless or undeserving of the severest condemnation, the moral force of the penal code is diminished.”

Moreover, when there is no certainty over what counts as criminal behavior, we are all suspected criminals. When we are all suspected criminals, the state attains the arbitrary power to pursue particular individuals. Nowhere is this potential for governmental caprice more evident than in the ever-expanding regulatory labyrinth, where agencies have been charged with “filling in” the specifics of legislation that would otherwise be too cumbersome to take up in the august halls of the Capitol.

Justice Scalia himself is waging a battle against the abuses of power inherent in our criminal-justice system, having authored the decision, Blakely v. Washington, that threw out one state’s sentencing guidelines and cast doubts on its federal counterpart. Mr. Luna provides a foresighted exegesis of the constitutionality of the federal sentencing system — an issue with which legal observers have become intimately familiar as the Supreme Court prepares to issue a decision that should decide the matter.

“Go Directly to Jail” does suffer from one flaw that even Mr. Healy’s artful editing could not remove: Several of the pieces are somewhat dated. While their points stand the test of time, there is room to wonder what further insights could have been drawn from a few more years’ legal development.

The book provides a concise yet devastating critique of the way we devise and apply criminal law in this country. Perhaps most unsettlingly, the reader is left to ponder the massive resources diverted from the central insecurities of modern life and — in this post-September 11 world — from making America secure against terror.

Ilya Shapiro, a lawyer and writer living in Washington, served the 2003-04 term as law clerk to a U.S. Court of Appeals judge.

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