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The “Risk” of Liberty: Criminal Law in the Welfare State

What Principle Should Limit the Scope of Criminal Law?

SEPTEMBER 01, 2008 by MICHAEL N. GIULIANO

Michael Giuliano is an attorney editor at Thomson Reuters.

The word crime has come to include an ever-increasing assortment of activities that do not fit the intuitive meaning of the word. The law has criminalized behavior deemed risky or undesirable and actions or status having only vague relationships to undefined harms. The lawmaking process under our welfare state is gripped by an incessant need to eliminate risk. This forecloses the possibility of significant liberty.

Within hours of that daily en masse recitation by schoolchildren that references “liberty and justice for all,” a certain public dissonance was revealed in Alaska in 1994, when railroad project manager Edward Hanousek found himself under arrest and facing criminal charges and a prison term. The offense putting him in that predicament took place at his worksite while he was off duty. It was only later he would learn he had become a criminal because petroleum was accidentally discharged after a backhoe operator working for a contractor on a railroad rock-quarry project had inadvertently damaged a pipeline.

Because Hanousek managed the project, he was held criminally liable for the accident. He was convicted of negligently discharging a pollutant and punished with a six-month prison term, six months in a halfway house, and six months of supervised release. The Supreme Court refused to consider his appeal, with only Justice Clarence Thomas and Justice Sandra Day O’Connor believing there was a due-process issue meriting the Court’s attention.

The legal dangers are not limited to those working in a managerial capacity. Bartending is everywhere a hazardous activity not solely because of unruly patrons, but because bartenders are under the imminent threat of arrest for the sale of alcohol to minors. The location of a particular night’s sting operation is the only determinant of which bartender faces the inevitable criminal charge. The purchaser’s use of fake identification may, in some circumstances, be a defense for the accused, although he or she might shoulder the burden of proof.

Two bartenders at different establishments, including a 69-year-old woman, were charged in Old Forge, New York, in 2006 after a 20-year-old man they had served later died in a snowmobile accident. These legal actions reflect the governmental view that another person must be ruined for any disaster to be complete.

A corporate executive is similarly liable to prosecution at any moment for “crimes” requiring no guilty mental state and where even prosecutors are unsure of what evidence legally establishes liability for the particular offense. Ambitious prosecutors are often successful at making a name for themselves by extending the reach of the criminal law. We saw then-U.S. Attorney Rudy Giuliani’s infamous staged handcuffing and arrest of three investment bankers he accused of insider trading. Former New York attorney general Eliot Spitzer bullied and prosecuted anyone who might serve as public-relations fodder for his quest for political power. (After becoming governor, he was caught patronizing a prostitution ring and had to resign.)

Business transgressions are routinely treated as criminal acts if not by statute, then by practice and interpretation. As Nicole Gelinas of the Manhattan Institute points out, jurors sitting in judgment of Kenneth Lay later admitted their ignorance of the legal standard required for his conviction on fraud charges. They used a standard of negligence when the actual standard for fraud is, at the least, some minimal knowledge and intent.

For another illustration, dare we consider the predicament of a pain sufferer when his doctor fails to adequately relieve suffering because he fears criminal prosecution for recklessly prescribing narcotics? As for those who seek painkillers but who may not wish to see a doctor or receive traditional medical assistance, a charge of criminal possession awaits. Drug prohibition becomes a capitulation to the totalitarian impulse. It may safely be said that liberty has ceased to exist under a criminal framework such as this.

 

American Criminal Law and “Risk Administration”

Our criminal law has descended into a system of punishing risks instead of the malicious acts toward others that fit within the common understanding of what a crime is. In the twentieth century, criminal law became “risk administration,” says law professor Markus Dubber. This system is a creature of the welfare state.

Changing values are reflected in a changed legal code. As late as the end of the eighteenth century, crime and sin were coterminous in the public mind, writes legal historian J. A. Sharpe. Risk-based lawmaking and the “nanny state” now construct the 21st-century equivalent of sin. Actions are seen through a lens that magnifies risk. Today the effects that criminal legislation seeks to ameliorate are more remote and uncertain. They indicate something other than malice on the part of the actor, while they intrude into the realm of personal decisions one could plausibly justify if freedom were an ideal.

The history of our own civilization reveals the notion of criminal law born of the “passion of resentment at injury or voluntary wrong,” Professor Ian Simpson Ross writes. True to form, under the old Anglo-Saxon law, government was not a central force in the criminal process; vindication was left to the aggrieved party. Restitution became the accepted punishment in most cases. Of course, not all criminals were able or willing to pay or otherwise compensate. In these cases, as former British judge Anthony Babington tells us, the law served no further restraint and allowed that the perpetrator might simply be “slain like a wild animal.” (The principle of proportionality was lacking.)

One of the defining characteristics of Anglo-American law was its individualistic focus. This is an internal focus that revolves around the criminal’s malicious act. The disappearance of the notion of a crime as a private wrong involving genuine malice is central to the developments in modern law. In modern times crime is viewed as an offense against society. The government prosecutor is deemed to represent “The People,” despite the oddity that juries, far more representative of the people than prosecutors, are allowed little substantive power in the process. “The People,” in reality, becomes a propaganda term.

The law’s traditional requirement of mens rea, or an evil mind, was the legal foundation of an act’s criminality. The corollary to this is the necessity of an overt act, or actus reus, comprising the evil deed. The criminal-lawmaking mindset today legislates toward an external standard that judges results and not internal malice. The concept of negligence and the motivations underlying its use in tort law have bled into the criminal law. Freedom is greatly diminished when individually blameless, private, and nonmalicious conduct is so routinely punished rather than subjected to civil remedies.

 

Utilitarianism and Its Effects

With the growth of secularism, sin and crime were no longer fused in the public mind, but the utilitarian rationale for public policy became the predominant molding influence. The main component of utilitarianism holds that the rightness or wrongness of an action is determined purely by its consequences. In some variants of the philosophy, the “right” consequences must be maximized by coercing, if necessary, the behavior that will bring them to fruition.

Classical utilitarianism stands in contrast to the traditional theory of inherent moral rights and obligations, Professor Raymond G. Frey writes. Actions are construed not as being right or wrong the moment the actor’s intent is formed and action commences, but by what are often remote and potential consequences of the behavior. Modern policy analysis frequently serves as justification for sweeping laws based on the policies’ general societal effects without regard to any limiting principle.

This consequentialism is the residue of utilitarianism on criminal law. An act is criminalized because of a slightly elevated risk the behavior creates and the particular political causes of the moment. The great utilitarian Jeremy Bentham posited that the good is the “greatest happiness of the greatest number.” Morality becomes that which the government must ensure through its manipulation of “aggregate happiness.” Morality is thus defined by results, and the significance of human freedom and conscience is erased. The welfare state’s raison d’être then requires the regulation of everything.

Bentham’s happiness principle expands the conception of harm and therefore the need for government coercion. The law’s reach under the utilitarian mentality is predicated on the belief that the ends justify the means. This belief, as F. A. Hayek wrote, is “in individualist ethics regarded as the denial of all morals. In collectivist ethics it becomes necessarily the supreme rule.” Criminal-law collectivism accompanies the economic collectivism of the welfare state.

Bentham would forcefully argue the benefits of a public prosecutor, further weakening the notion of crime as a wrong engendering resentment in a victimized party. Without a public prosecutor, a great many of the overreaching laws existent today would be impossible; there would be no resentful private party to bring the victimless criminal into court. J. A. Sharpe has shown that in England most felony prosecutions were once brought by the victim or a family member.

The public prosecutor in England was seen by certain citizens as portending the advent of a new legal regime; some suspicion sprung up due to its implicit threat to freedom and the association of public prosecution with the institutions of authoritarian regimes. As related by Professor Randall McGowen, “[P]rivate prosecutions were seen as important safeguards of English freedom.”

Under the strict letter of the law as it now operates, the true risk of an action is never determined. Behavior is made criminal because in the lawmaker’s view it may in some instances lead to a certain injury. A person, for example, might be charged with possessing a weapon regardless of the fact that there is no resulting injury, the violator’s intentions were innocent, and the actions were cautious and reasonable under the circumstances. The potential-risk offense does not require the prosecutor to prove any particular recklessness in the same way that a personal-injury plaintiff must prove the defendant’s negligent conduct.

A sibling of the potential-risk offense is the so-called public-welfare crime, a crime of the sort that ensnared Edward Hanousek. Here, there is an injury of a sort (the environmental contamination in that case), but the violator displays no “vicious” or grossly negligent state of mind. These crimes are based on strict liability; the lack of fault is no defense.

Occasionally there is a certain ambivalence on display within the legal system over the confused role of negligence in the criminal law and its implications. It took several years and a ruling from New York’s highest court to overturn the conviction of a 17-year-old charged with criminally negligent homicide for three fatalities resulting from a car accident caused by the excessive speed at which he was driving. The teenager, driving to a lake with other teens in the same vehicle, exceeded 70 miles per hour on a twisting stretch of road that had a speed limit of 55 miles per hour. He lost control of the vehicle on one of the turns.

The Court of Appeals, in People v. Cabrera, vacated the conviction, finding that speeding, without anything else, did not constitute the “morally blameworthy” conduct and mens rea required for such a serious felony conviction. Of course, as negligence involves conduct that, as Justice Oliver Wendell Holmes observed, is by definition not truly blameworthy, it is unclear how courts, attorneys, and the police could ever consistently enforce or interpret such vague and nondescript offenses.

Using the concept of negligence to simply shift the monetary costs to the party with deeper pockets, as often occurs in personal-injury suits, is far removed from its use to impose a criminal sanction. Wrote Supreme Court Justice Frank Murphy, dissenting in U.S. v. Dotterweich: “It is a fundamental principle of Anglo-Saxon jurisprudence that guilt . . . is not lightly to be imputed to a citizen who . . . has no evil intention or consciousness of wrongdoing.” Similarly, English jurist William Blackstone declared that for an act to be considered a crime, there must be a “vicious will.” Nevertheless, the consequentialist influence, promoting the idea that indirect and unlikely consequences should determine the legality of behavior, has expunged the distinction between the pure accident of tort and criminal malice. The misfortune of those such as Hanousek who are punished for accidents or the millions of those punished for arbitrarily defined and victimless crimes highlight the very real absence of any evil intention on the part of so many violators and “criminals.”

John Stuart Mill devised the “harm principle” as a limitation on what the government may rightly prohibit. The principle is problematic, though, as legal philosopher Joel Feinberg pointed out, because “the harm principle may be taken to invite state interference without limit” as no action is without some possible negative effect. When any risk itself is to be punished, this “harm principle” becomes irrelevant.

 

“Social Perfection” in the Early Twentieth Century

If we wanted some explanation for the development of these laws, the early twentieth century’s peculiar utopian ideologies and movements seem to be a reasonable start. Rooted in “science” and a desire for social perfection—with a focus on vice, public health, eugenics, drugs, and alcohol—these movements used law to invade the private sphere in the name of the public good.

The origin of such law is in the American tradition of searching for a “holy utopia,” writes Freeman columnist Thomas Szasz. The American passion for moral reform, combined with the “medicalization of morals,” leads to the modern “crusades against disease.” Early twentieth-century preachers of the progressive, scientific mindset would remind their parishioners of their duty to improve the human race. Improving it, as one might expect, meant criminalizing more actions and imprisoning more people.

As author Christine Rosen has detailed, the “social gospel” of the period would push the legislatures to tackle all of the impurity of the times, including prostitution, gambling, and drug and alcohol use. Rev. Walter Taylor Sumner of Chicago excoriated rampant prostitution, drug use, and “dance halls,” and would extol to other progressive-minded clergymen the benefits of “eugenic marriage.” These concerns led to unfortunate undertakings that Carrie Buck, whose forced sterilization was made infamous by the Supreme Court’s decision in Buck v. Bell, experienced all too well.

The intolerance of risk and vice that the consequentialist dogma imposed left us crimes that punish status as an indicator of risk. One of the crimes the movement enshrined as a law-enforcement priority is the drug offense. In 2006 these offenses incapacitated over 343,000 people within “corrections” facilities, according to the Bureau of Justice Statistics. Driving under the influence is another. Such an offense requires no injury to create liability, and no particular negligence need be proven. Blood-alcohol content becomes the determinant of what is deemed criminal behavior. The actual recklessness or criminality involved in the behavior is not determined. These laws are an end-run around the law of personal injury, property damage, and manslaughter.

The lawmaker’s call to ensure welfare and safety by means of coercion is never long silenced. Imagine Congress and the federal agencies making no new laws or regulations in 2009. The horror of it, of course, repels the conscience.

Within the English and American legal and constitutional tradition, there are assumed to exist personal liberties that either preexist or supersede government power. The “greatest happiness of the greatest number” rule is, in contrast, a principle declaring that the ends justify the means. This elevates a consequentialism that invents responsibility for attenuated effects and thus removes all limitation on the scope of law’s coercive reach. The trek toward greater utilitarianism was in avowed opposition to the natural rights that, in the words of legal scholar Edward Corwin, once “morally exonerated the humblest citizen in defiance of the highest authority.”

As historian Carl Ludwig von Bar wrote, a remote effect on society should not serve as a basis for criminal liability. What principle should limit the scope of criminal law? A requirement of harm clearly serves as a weak restraint on lawmakers. A better alternative is the principle that every crime should require as one of its elements some malicious, knowingly injurious conduct toward an identifiable victim that would prompt a desire for retribution. It must reject outright offenses that vitiate personal conscience and intrude on privacy. With this limiting principle as guide, perhaps a new framework for the penal law will shrink its inflated boundaries back within the perimeters necessary for a free society.

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