Invasive airport scanners, innocent men executed, and the largest prison population in the world
Criminal law and criminal justice in the United States may reasonably be said to be in a state of crisis in many different aspects: the increasing amount of criminal law, the kinds of things it tries to address, its enforcement, the level of criminal activity, and punishment.
The sub-title of a book published by the Cato Institute some years ago underscores the reality of the explosion of criminal law in recent decades: The Criminalization of Just about Everything (the title was a not-so-humorous take-off from the old “Monopoly” game: Go Directly to Jail). What were formerly merely torts are now criminalized. The federal criminal code has ballooned; few things used to be federal offenses, now many are. Things that a few decades ago no one would have dreamed would bring the heavy hand of the law on someone result in criminal charges (like the case of the West Virginia middle-school student recently jailed for “disturbing the educational process” for arguing with his teacher about whether he could wear his pro-NRA tee-shirt). An increasing amount of statutory law—both in the criminal and non-criminal categories—is vague and unclear. Among the best examples are the child abuse and neglect laws, triggered by the passage of the federal Mondale Act forty years ago. The result has been a child protective system (CPS) spending most of its time investigating innocent childrearing behaviors and a veritable national crisis of false reporting (80% or so of the reports are unfounded). Many federal criminal law provisions are now contained within the mountain of regulatory law—taking up somewhere around 75,000 pages in the Federal Register—some of which is contradictory, unclear, or unworkable. As federal appellate judge Edith Jones stated several years ago, federal agencies “have made the law so complicated that it is difficult to decipher and often contradicts itself.”
The effect of all this is to make a mockery of law and to encourage a lack of respect for it. It makes it difficult to take seriously the old standard—hearkening back to Roman law—that “ignorance of the law is no excuse.” How many of us can reasonably work our way through 75,000 pages (and that’s just one type of current law), even if we could decipher it? It also encourages arbitrary government action. The obvious implication of such developments is the weakening of the rule of law, which was a bedrock principle of the American Founding to help protect against just such arbitrariness and insure liberty. Catholic social teaching also stresses the essentiality of the rule of law.
It is not surprising that the amount of positive law—the law of the state—has mushroomed. As Russell Kirk said, “order is the first need of all”; without it life becomes intolerable, and so men will give up almost anything else to get it. At a time when most of the other traditional means of securing order—religion, the family, sound morality, and strong community life—have in large measure broken down, all that seems to be left is the coercive power of the state as expressed through its laws. Externally imposed order intensifies when internal order—which makes self-control possible—weakens. Still, this does not completely explain our current situation. It is also a result of an ideological atmosphere that increasingly sees the state as the all-purpose solution—this probably reflects the influence of a vague, vulgarized Marxism—and simply of a certain way of thinking that increasing took hold in America as the twentieth century progressed (“there oughta be a law”).
Not only has the breakdown of internal control meant more external control