Everyone's a suspect

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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.