Tag: In the Name of Justice

Three Felonies a Day

Harvey Silverglate’s new book, Three Felonies a Day: How the Feds Target the Innocent, is receiving a good bit of press. L. Gordon Crovitz has a good piece up at the Wall Street Journal discussing federal overcriminalization and how it impacts information technology. National Review Online has an audio interview with Silverglate discussing how federal law often strays from traditional notions of criminal intent, making innocent activity potentially criminal.

Silverglate will be speaking at Cato on Thursday at a book forum with Tim Lynch. Tim’s recent book In the Name of Justice looks at the evolution of strict liability statutes and other developments in criminal law with chapters from prominent legal thinkers. Washington Times columnist Tony Blankley will be serving as guest moderator. Admission is free; registration information is available here, and the event can be watched live at the link.

Ken Lammers on Posner and Strict Liability

Ken Lammers, who blogs over at CrimLaw, recently posted a review of my new book, In the Name of JusticeBy way of background, the book is an edited collection of essays.  The lead essay is a reprint of the 1958 classic, “The Aims of the Criminal Law,” by Harvard Law Professor Henry Hart.  Legal and criminal law experts, such as Judge Richard Posner and James Q. Wilson (among others), have written original essays about Hart’s ideas.  

 Among other things, Hart critiqued the doctrine of strict criminal liability–which essentially dispenses with the requirement of proving someone’s criminal intent.  Hart says this is profoundly wrong.  The essence of  criminal conduct is that the person has done something which is blameworthy.  With strict liability, prosecutors can condemn certain persons as “criminals” without proving that they have done anything that is truly blameworthy.

Judge Richard Posner’s essay offers a defense of the strict liability doctrine, but Ken Lammers is not persuaded.  Here’s an excerpt:

Posner’s strongest argument is born of the wisdom of ignorance: the statutory rape argument. The statutory rape, best-interest-of-the-child, absolute strict liability is a creature born of emotion divorced from logical thought. We must protect the children at all costs. Therefore, anybody who crosses the line gets convicted no matter the circumstance. “The effect is to induce men to steer well clear of young-looking women, a form of care they would be less likely to use if ignorance were a defense.” (p. 97)

This pretty much brands Posner as someone who has not had actual trial experience. He’s never seen that trial wherein the immature 18 year old defendant (looking all of 14) has “raped” the 14 year old predatory girl (who looked 20) who had a list on her bedroom door of men she aimed to have sex with and had crossed several names off as she achieved her goal. Y’know, the same girl who turned the defendant in because she got mad at him when he found out her age and refused to have sex with her anymore. Guilt via strict liability. I’ve seen at least two cases with facts similar to this in my 8+ years practicing (none at my current locale); persons in larger jurisdictions can probably relate more of the same. This is how the “justice” of strict liability plays out in real life and anyone who thinks that is the proper way for the law to work is clearly engaging in faulty reasoning.

I agree.  And statutory rape is just a single example of where the doctrine of strict liability has taken hold.  Once that precedent was established, it has expanded elsewhere, as have the injustices.  For example, the law bans felons from possessing guns and ammunition.  Dane Yirkovsky found a bullet at his girlfriend’s house and put it in a dish on the dresser.  Later, police search and find the bullet.  Yirkovsky tells them that he  put it there.  Since he is an ex-con, he gets arrested on a felon-in-possession charge.  And with mandatory minimum sentencing in place, he is now serving a fifteen year prison sentence. Under the law, Yirkovsky is “guilty.”  But did he do anything that was really  blameworthy?  Can his conduct really be described as “criminal?”

To learn more about the state of our criminal law, get the book.

Who’s Blogging about Cato

Here’s a round-up of bloggers who are writing about Cato this week:

  • Writing at the Adam Smith Institute blog, Phillip Salter discusses Patrick J. Michaels’s proposal that scientific articles should be available online for public comment.
  • Penning his thoughts on Obama’s plan to raise taxes on oil and gas usage, Wintery Knight cites Jerry Taylor’s research that shows why similar price control programs didn’t work in the 1970s.
  • Reihan Salam quotes William Niskanen on The Atlantic’s Washington blog in a post about the “starve the beast” theory that says lawmakers can slow government’s growth by lowering taxes and running up deficits.
  • Think Progress blogger Matthew Yglesias responds to Michael Cannon’s work on health care reform in a post about Obama’s White House health care summit.
  • Dr. Paul Hsieh of FIRM (Freedom and Individual Rights in Medicine) and Brian Schwartz of Patient Power cite John H. Cochrane’s Cato paper on free market solutions to health care security.