For the past decade I have focused on the growth of federal criminal law, and in a recent article in Regulation magazine I took a hard look at how this development harms the economy. With the Obama administration’s stated determination to have the Justice Department seek criminal charges in the BP oil spill, I believe we should take a hard look at the entire legal process.
To understand the current situation, remember that at the founding of the United States the only federal crimes were treason, piracy, and counterfeiting. Today there are more than 4,000 federal criminal statutes and 10,000-plus more federal regulations that can be rolled into crimes. In the past 30 years the federal prison population has grown from 20,000 to more than 200,000 and many thousands more are on probation or are awaiting incarceration.
About half the federal prison population consists of people convicted of drug-related offenses, as the drug war has fueled the growth of federal law-enforcement power. While “white collar” offenders are perhaps 10 percent of the federal prison population, this still is a significant number, and what makes it more significant is that many people convicted are not guilty of “crimes” in the historical sense, but simply violated rules they did not even know existed.
Attorney Paul Rosenzweig, in a 2003 Heritage Foundation paper on the growth of federal crimes, wrote:
[T]oday the criminal law has strayed far from its historical roots. Where once the criminal law was an exclusively moral undertaking, it now has expanded to the point that it is principally utilitarian in nature. In some instances the law now makes criminal the failure to act in conformance with some imposed legal duty. In others the law criminalizes conduct undertaken without any culpable intent. And many statutes punish those whose acts are wrongful only by virtue of legislative determination.
The common-law tradition that Americans received from Great Britain was heavily influenced by William Blackstone and his principle that a crime had to be accompanied by a “vicious will” in which the perpetrator both intended to break the law and to harm someone. By changing that principle to one in which prison sentences and fines are imposed simply for breaking a rule, even if unintentionally, the government effectively can turn nearly everyone into a criminal.
In his excellent book Three Felonies a Day, Harvey Silverglate points out that most people who practice a profession commit what could be construed as federal crimes, yet the vast majority of them are not criminals. They simply have run afoul of laws, regulations, or policies set for political purposes.
As the oil from the BP spill washes onto beaches and fouls the Gulf of Mexico, politicians can easily play to public anger by finding clever ways to charge BP officials with federal crimes. After the 1989 Exxon Valdez oil-tanker spill at Prince William Sound, Alaska, the government criminally charged the company for allegedly violating laws regarding migratory birds. However, as Paul Craig Roberts and Lawrence Stratton point out in The Tyranny of Good Intentions, there was no intent — Exxon did not want the spill to occur.
Roberts and Stratton write, however, that Exxon executives had no confidence in the fairness of the “justice” system, so the company pleaded guilty. The current situation is even more perilous, as federal prosecutors today are more bold and creative. There seem to be even fewer constraints on the government than 20 years ago.
We cannot have a free society and a legal system in which federal prosecutors can railroad targeted people into prison. Likewise, if we can be manipulated into cheering when people are convicted on questionable charges simply because they are associated with something unpopular, then we will be poorer and less safe than if government were bound by the original constraints of the U.S. Constitution.