It is not surprising that the viewpoints discussed in Part 2 also would transform criminal law. Americans had inherited from Great Britain the common law, in which the criminal portion was based on the doctrine of malum in se. That meant that criminal acts, such as murder, robbery, and other impositions of real harm upon others, were understood to be bad in themselves. A society did not need special statutes against murder, rape, and robbery, because people already recognized that those acts were evil in and of themselves. (It is true that there are laws against murder, but advocates of natural law would say that people had “discovered” such laws, not that they had made them up arbitrarily.)
The Progressives, however, emphasized the doctrine of malum prohibitum, which was a view that acts were “bad” because the government said so.K This way of thinking emphasized the belief that it was government that determined what was good and what was not, and that it was the duty of people to obey “the law of the land” after it was imposed.
From malum prohibitum came not only legislation such as Prohibition and the drug war, but a whole new class of “economic crimes,” which first had their origin in the law of the Soviet Union. One of the most important developments was the identification of what is called “white collar crime,” a term developed in the late 1930s by sociologist Edwin Sutherland.
A socialist, Sutherland believed that many standard business transactions really were criminal in nature, something on which he expounded in his 1939 presidential address to the American Sociological Society. That address received great attention in the press and had a huge impact on the nature of U.S. law.
Sutherland believed that most business owners were little more than criminals, and he held that the focus of criminal law should be directed toward these “higher-class” people as opposed to those of “lower classes” who engaged in the common crimes of murder and robbery. He also believed that the traditional protections given to criminal suspects, such as the presumption of innocence and the doctrine of mens rea — that the accused intended to commit a crime — be done away with in “white collar” cases.
His message was popular among those who blamed businessmen for the Great Depression and believed that government should play a greater role in promoting economic well-being, and the denizens of the New Deal eagerly embraced his ideas. Furthermore, the seeming success of the USSR with its state-run economy and its prohibition of private enterprise was popular among U.S. intellectuals who believed that the United States should be similarly organized. The idea of criminalizing “greed” resonated with people who believed that the United States needed to be remade in the image of the Soviet commissars.
Now, businessmen certainly can commit real crimes. People might embezzle from their employers, and some engage in outright fraudulent “Ponzi schemes,” as Bernard Madoff recently was doing until his financial empire collapsed. However, many of the so-called white collar crimes are much murkier in that they involve interpretations of certain actions to ascertain whether they are “criminal.”
For example, when the late Ken Lay, the former CEO of Enron, was on trial after the collapse of his company, one of the charges was that he illegally sold Enron stock. However, before he sold that stock, he had sought the advice of an attorney who testified that Lay wanted to make sure everything he did was legal, and he carried out the sale according to the advice given him by legal counsel.
However, a jury (at the urging both of the prosecution and the trial judge) ignored the mens rea doctrine and convicted Lay. While the media and politicians cheered the conviction, what really happened that day was that the American justice system moved even further from its own roots.
The marriage of this “alternative” view of law and the U.S. federal courts was inevitable. State courts tend to deal with the traditional crimes of robbery, murder, and others that fall into the malum in se category, although there also are malum prohibitum violations under state law, such as exceeding speed limits or violating zoning ordinances.
Crimes in the federal statutes, however, tend to fall into the malum prohibitum, category; even when outright evil acts such as murder and rape are prosecuted in federal courts it is because of certain legal technicalities involving the commission of the illegal act. For example, if one “carjacks” a vehicle at a stoplight, the accused can be tried in federal court because Congress and the judiciary have taken a rather tortured view of the Commerce Clause of the U.S. Constitution to take what ordinarily would be a state offense and place it in the federal courts, where rules of evidence are tilted in favor of the prosecution and the rights of the accused are restricted.
In other words, when the malum in se acts are tried in federal courts, it is often for political purposes, as members of Congress like to be seen as “tough on crime.” As for the “white collar” crimes that are tried in federal courts, we find that more often than not, it is the interpretation of an act that matters, rather than the act itself.
For example, if someone in a state court is charged with murder, we assume first that there actually was a murder that was committed. The real questions at hand are not whether someone was killed, but rather whether the defendant is the murderer and, equally important, whether he had the requisite intent to justify a murder conviction.
On the other hand, consider such federal crimes as “conspiracy” or “fraud,” which have become favorites of federal prosecutors. Such crimes are so nebulous and subjective that it has become relatively easy for prosecutors to overcome what would ordinarily be the rather difficult burden of establishing the criminal intent of the accused. Insider-trading violations are a good example of this phenomenon.
Moreover, when people in financial markets are charged with crimes regarding certain transactions, often the operations can be complicated, a state of affairs that works in favor of the prosecution. Ordinary jurors often are confused about what has taken place, so that, notwithstanding the judge’s instructions on the presumption of the defendant’s innocence and the government’s burden of proof, jurors are likely to take the default position that if the prosecutors are charging someone with a complicated crime, that is de facto proof that the person is guilty.
The concept of natural law rests on the view that the rightness or wrongness of an act should be readily apparent. Modern federal law clearly does not fall into that category, as many of the “crimes” really are what Candice E. Jackson and I have called “derivative crimes,” in which the official charges actually are derived from other acts said to have been committed by the defendant, but for which he is not charged.
For example, in the Enron case, a number of the accounting measures taken by company principals were legal and were part of the official financial statements. While the measures, in hindsight, were controversial, nonetheless investors (if they cared to look) could find the information in question. After Enron collapsed, however, federal prosecutors claimed that company officials had undertaken the accounting measures in order to present a false picture of company finances and defraud investors.
In reality, Ken Lay and his top executive partner, Jeffrey Skilling, held almost all of their paper wealth in Enron stock and each lost nearly everything in the wake of the company’s collapse, but that fact never mattered to prosecutors, jurors, or the media. Enron’s real crime was going out of business, and federal prosecutors were able to turn to their various fraud statutes (which the noted attorney Harvey Silverglate calls “giant garbage pails”) to gain a measure of public revenge.
Of course, while “financial crimes” are high-profile in federal prosecutions, in sheer number, they are dwarfed by the “crimes” involving the production, sale, and use of illegal drugs. In 1980, there were approximately 1,500 federal prosecutors and about 20,000 people incarcerated in federal prisons.
Today, federal prisons hold close to 10 times the 1980 number and there are nearly 8,000 federal prosecutors, and the majority of cases they pursue involve illegal drugs (another example of malum prohibitum). Criminal law expert Radley Balko in an interview with The Atlantic recently commented on this situation:
Federal criminal justice grants, asset forfeiture, promotions, higher office — all of these rewards are based on arrests and convictions, not necessarily a fair administration of justice.
The other problem I think is a more general tendency in America toward criminalizing bad behavior. We seem to be unable to accept the idea that sometimes, bad things just happen. We want someone to be punished. If there’s no law on the books, we demand our politicians pass one.
The combination has been lethal, at least to the historical concepts of law. Furthermore, the emphasis on prohibiting what is seen as “bad behavior” also has led to the federal government’s using law to promote what politically is seen as “good behavior.”
One example is in the promotion of “alternative fuels” to replace oil, natural gas, and coal, which environmentalists and their government allies have denounced as evil. As a result, billions of dollars in government subsidies are poured into windmills and corn-based ethanol, despite the fact that the “goals” of production set by Congress in its environmental laws run headlong into the laws of science, and especially the First and Second Laws of Thermodynamics, not to mention the laws of economics.
As noted earlier, if Congress were to announce it had repealed gravity, we would laugh. However, Congress today claims to be passing legislation that will give us better weather, and those that point out the utter foolishness of this legislation are called “traitors to the planet” and worse.
Unfortunately, when such scientific and economic foolishness are enshrined in law, and then enforced by the civil and criminal codes, the law itself becomes a huge burden upon society, for it establishes standards that no one can meet and punishes people for not doing the impossible. At that point, the law no longer is the law, but simply a painful burden imposed on others by their rulers. Likewise, the federal law has become so complicated and so vague that even people trying to follow its guidelines can be tripped up, convicted, and sent to prison because it is politically popular to prosecute them.
At the beginning of this article, I wrote that the federal courts carry all of the trappings of jurisprudence of old. What is missing, however, is the very substance of law as understood by the Founders of the United States and enshrined in the U.S. Constitution.
By openly rejecting natural law and by accepting a form of “law” that is little more than a collection of petty rules, Congress, the executive branch, and the courts have turned one of this nation’s greatest assets into one of its biggest jokes. Unfortunately, the joke is on those of us who are not politically well connected, and in the vacuum created by the rejection of natural law has naturally appeared the path to tyranny.