“As laws grow, liberty dies.”
These days, the government’s answer increasingly appears to be a resounding “Yes.”
Earlier this week, the Wall Street Journal reported on the enormous volume of over 5,000 federal criminal statutes enacted over the past few decades, and the slow, deliberate destruction of a crucial principle in law called “mens rea”.
Meaning “guilty mind” in Latin, means rea doctrine limits your criminal liability to your intent and knowledge while committing an act.
Basically, “mens rea” says you must know what you are doing is wrong for it to be criminal.
But that’s all starting to change, and it’s a huge threat to the freedoms of every American.
The U.S. Congress has passed a vast array of laws that ignore “mens rea” as a necessary component of a crime. Increasingly, federal prosecutors don’t even have to try and prove your state of mind during the crime. Whether you know or not what you did is wrong, you can pay huge fines or even head to prison.
This is a perfect storm of sorts. As ridiculous, vague, and endless federal laws are passed every day, it’s essentially impossible for anyone to keep tabs on these rules, and not knowing is increasingly not a defense.
We are not talking about the Ten Commandments here. These are laws a rational, well-informed person would probably never know about, unless they violated them. And there are so many of these laws, not even the Department of Justice can give an accurate tally.
Case in point: the WSJ in July told the story of Eddie Leroy Anderson, an Idaho man who used to dig for arrowheads as a hobby. During one expedition near a favored camp ground, they wandered onto federal land. Authorities told them to “Get a lawyer, and a damn good one.”
What law did Mr. Anderson and his son violate?
The Archaeological Resources Protection Act of 1979. State of mind is irrelevant to the statute, and the penalty can be up to two years in federal prison– for accidentally digging a hole in the wrong part of the woods.
In another instance of federal laws run amok, a man in Flagstaff, Arizona was found guilty in 1999 of violating a federal statute prohibiting those convicted of domestic violence from owning guns. The law wasn’t on the books when he bought the gun, but it was retroactively applied to him.
He received five years of probation for violating a federal law that was passed after the act in question was committed.
Even more astonishing, use the Fed’s Smokey the Bear image or the slogan “Give a Hoot, Don’t Pollute” without permission, and you could end up in federal prison.
The vast expansion of federal laws, and the removal of mens rea as protection for average citizens, has already had massive impact on the American prison population. The Journal cited these startling numbers of the Federal Bureau of Justice Statistics:
“The number of people sentenced to federal prison has risen nearly threefold over the past 30 years to 83,000 annually. The U.S. population grew only about 36% in that period. The total federal prison population, over 200,000, grew more than eightfold—twice the growth rate of the state prison population, now at 2 million.”
What this all amounts to is a vast expansion of Federal powers, far beyond anything articulated in the Constitution, and placing millions of Americans in dubious legal jeopardy.
The great Anglo-Irish philosopher Edmund Burke once said “Bad laws are the worst sort of tyranny.”
If Burke were alive today, he would see the trends in American federal law as a grave threat to liberty.
As Federal Crime List Grows, Threshold of Guilt Declines
For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a “guilty mind.”
This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them.
As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time. When the police came to Wade Martin’s home in Sitka, Alaska, in 2003, he says he had no idea why. Under an exemption to the Marine Mammal Protection Act, coastal Native Alaskans such as Mr. Martin are allowed to trap and hunt species that others can’t. That included the 10 sea otters he had recently sold for $50 apiece.
Mr. Martin, 50 years old, readily admitted making the sale. “Then, they told me the buyer wasn’t a native,” he recalls.
The law requires that animals sold to non-Native Alaskans be converted into handicrafts. He knew the law, Mr. Martin said, and he had thought the buyer was Native Alaskan.
He pleaded guilty in 2008. The government didn’t have to prove he knew his conduct was illegal, his lawyer told him. They merely had to show he had made the sale.
“I was thinking, damn, my life’s over,” Mr. Martin says.
Federal magistrate Judge John Roberts gave him two years’ probation and a $1,000 fine. He told the trapper: “You’re responsible for the actions that you take.”
Mr. Martin now asks customers to prove their heritage and residency. “You get real smart after they come to your house and arrest you and make you feel like Charles Manson,” he says.
The U.S. Attorney’s office in Alaska didn’t respond to requests for comment.
Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s.
One controversial new law can hold animal-rights activists criminally responsible for protests that cause the target of their attention to be fearful, regardless of the protesters’ intentions. Congress passed the law in 2006 with only about a half-dozen of the 535 members voting on it.
Under English common law principles, most U.S. criminal statutes traditionally required prosecutors not only to prove that defendants committed a bad act, but also that they also had bad intentions. In a theft, don’t merely show that the accused took someone’s property, but also show that he or she knew it belonged to someone else.
Over time, lawmakers have devised a sliding scale for different crimes. For instance, a “willful” violation is among the toughest to prove.
Requiring the government to prove a willful violation is “a big protection for all of us,” says Andrew Weissmann, a New York attorney who for a time ran the Justice Department’s criminal investigation of Enron Corp. Generally speaking in criminal law, he says, willful means “you have the specific intent to violate the law.”
A lower threshold, attorneys say, involves proving that someone “knowingly” violated the law. It can be easier to fall afoul of the law under these terms.
In one case, Gary Hancock of Flagstaff, Ariz., was found guilty in 1999 of violating a federal law prohibiting people with a misdemeanor domestic violence record from gun ownership. At the time of his domestic-violence convictions in the early 1990s, the statute didn’t exist—but later it was applied to him. He hadn’t been told of the new law, and he still owned guns. Mr. Hancock was convicted and sentenced to five years’ probation.
His lawyer, Jane McClellan, says prosecutors “did not have to prove he knew about the law. They only had to prove that he knew he had guns.”
Upholding the conviction, a federal appellate court said that “the requirement of ‘knowing’ conduct refers to knowledge of possession, rather than knowledge of the legal consequences of possession.”
In 1998, Dane A. Yirkovsky, a Cedar Rapids, Iowa, man with an extensive criminal record, was back in school pursuing a high-school diploma and working as a drywall installer. While doing some remodeling work, Mr. Yirkovsky found a .22 caliber bullet underneath a carpet, according to court documents. He put it in a box in his room, the records show.
A few months later, local police found the bullet during a search of his apartment. State officials didn’t charge him with wrongdoing, but federal officials contended that possessing even one bullet violated a federal law prohibiting felons from having firearms.
Mr. Yirkovsky pleaded guilty to having the bullet. He received a congressionally mandated 15-year prison sentence, which a federal appeals court upheld but called “an extreme penalty under the facts as presented to this court.” Mr. Yirkovsky is due to be released in May 2013.
Growth in Federal Criminal Sentences
See a breakdown of the rise in federal sentences by the type of offense.
Changing laws mean it’s easier for a mistake to be treated as a federal crime. Mr. Martin says he learned that firsthand.
Overall, more than 40% of nonviolent offenses created or amended during two recent Congresses—the 109th and the 111th, the latter of which ran through last year—had “weak” mens rea requirements at best, according to a study conducted by the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers. The study, one of the few to examine mens rea, was extended to include the most recent Congress at the request of The Wall Street Journal.
Earlier this year, Justice Antonin Scalia, in a dissent from a Supreme Court decision upholding a firearms-related conviction, wrote that Congress “puts forth an ever-increasing volume” of imprecise criminal laws and criticized lawmakers for passing too much “fuzzy, leave-the-details-to-be-sorted-out-by-the-courts” legislation.
Lawmakers on both sides of the aisle worry about the weakening of mens rea. “Over my six years in Congress there have been many times when in discussions with members of Congress I say, ‘Look, I know you want to show people how serious you are about crime, but don’t put anything on the books that doesn’t require criminal intent,'” says Rep. Louie Gohmert, (R., Tex.) a former state judge who wants the federal system reworked. Read full article at the Wall Street Journal
The United States imprisons more people than any other country in the world. More than China and Russia, COMBINED. Ok, I misspoke there, ALMOST combined lol:
Country – Prison population (Population per 100,000)
US – 2,193,798 – 737
CHINA – 1,548,498 – 118
RUSSIA – 874,161 – 615
BRAZIL – 371,482 – 193
INDIA – 332,112 – 30
MEXICO – 214,450 – 196
UKRAINE – 162,602 – 350
Whole chart can be found here:
Land of the free and home of the brave? Yea right, if you believe that anymore I got a bridge for sale 🙂
Source: the Blaze
The Architecture of Control
Since you may be spending some time there, if the watch lists and crime lists keep increasing, this might interest you:
Architecture and design made specifically to control and easily subdue populations is nothing new; architects and urban planners have long recognized the inherent ability of design to affect mood, temperament, and even the physical and social properties of people. Prison design is one such exercise that directly engages the dialogue between space and social control.
There are to schools of thought which raises the questions: should architecture be used as a punishment in itself, made as harsh and cruel as possible in a bid to make inmates sorry for what they’ve done, or should it uplift and rehabilitate them, showing them that there’s more to the world than a life of crime?
While some architects boycott prison design altogether others produce (often controversial) designs that revolutionize prisoners’ relationships with their environment, each other and the world at large – for better or worse.
Not Just Jail: 12 Modern, Futuristic & Fascinating Prisons
Justizzentrum Leoben Minimum Security Prison, Austria
(images via: hohesinn-arhitektur.at)
Possibly the poshest prison on the world, Austria’s Leoben Justice Center lets inmates live the high life in a beautifully designed facility with perks like designer furniture, personal televisions, gardens and an indoor ping-pong court. Resembling a luxury estate more than a penitentiary for criminals, this ‘rehabilitation center’ aims to give prisoners a comfortable, nurturing place to reflect on their crimes, and inspire them to live better lives in the future. One inscription on the exterior reads, “Each of the persons deprived of their liberty must be humanely and with respect for the inherent dignity of the human being treated.”
Shipping Container Prison Cells
(images via: adelaidenow, greenbiz)
Are shipping container prison cells a brilliant example of eco-minded reuse, or a cruel way to house criminals? A local prison in Australia has upcycled shipping containers into cheap prisoner housing, andanother prison in New Zealand has begun using them as a solution for overcrowding. The concept has drawn controversy from critics who worry that the conditions of shipping container prison cells are inhumane, or that they’re not secure enough.
(image via: evolo.us)
An interesting concept from Malaysian designers Chow Khoon Toong, Ong Tien Yee and Beh Ssi Cze places a productive prison complex in the air above a ‘host city’. This vertical prison aims to create a prison community where inmates live and work in agricultural fields, factories and recycling plants as a way to give back to the community. While law-abiding citizens below might not appreciate their view of the sky being replaced with a looming, spaceship-like prison, the system would theoretically turn a prison sentence into a learning experience that benefits everyone.
Halden Fengsel Prison, Norway
(images via: architizer)
This prison, located in Norway, is nicer than the homes of many wealthy people, featuring award-winning architecture, art and amenities. Believing that prisons needn’t be cruel and painful in order to be effective, Erik Møller Architects produced a facility where inmates can jog down woodland trails and take cooking classes. While this may seem unreasonably plush for a place of punishment, it’s worth noting that whereas harsh and austere prisons in America and Britain have a 50% return rate, Norway’s is only 20%.
Benthamite Radial Prisons
(images via: wikimedia commons)
In 1791, philosopher and social theorist Jeremy Bentham designed an institution that enables the managers or staff to view every inmate in the building, enabling a smaller workforce and thus lowering costs. His ‘Panopticon’ concept never came into being during his lifetime, and no true Panopticon prisons have ever been built according to his exact designs; the closest is the now-abandoned Presidio Modelo in Cuba (pictured).
Danish State Prison
(images via: dezeen)
A new state prison will soon be built on the island of Falster in Denmark which is laid out like a small village and emphasize work and leisure activities as well as green spas. Danish architects C.F. Møller have made the prison bright and airy with large windows and skylights. A network of streets connect inmate housing to administration buildings, a library, a worship room, sports facilities and a shop.
Believing that wayward youth will benefit from a connection to nature, UArchitects have
(images via: archdaily)
given the Juvenile Pavilion in The Netherlands an earthy, organic feel with an open structure wrapped in slatted wood. Instead of a dark, enclosed prison, the facility is transparent, maintaining a lifeline to the outside world that reminds the residents that their stay is not permanent.
The Creative Prison
(images via: subtopia)
How does the design of prisons inform their effectiveness? That’s the question that architect Will Alsop asked when he teamed up with activist arts group Rideout for the Creative Prison Project in 2006. The collaboration produced concept art for a ‘fantasy prison’ that was driven, in part, by the ideas of inmates who were asked how they would improve the prison environment. The results emphasize rehabilitation and education, allowing the prisoner population to live in college campus-like ‘modules’ and interact with the outside world. Each prisoner block would include a communal kitchen, common room and enclosed garden.
Port Arthur ‘Separate’ Prison
(images via: architecture.com)
On the darker side of prison design are facilities like the notoriously inhumane ‘Separate’ prison in Port Arthur, Australia. The Victorian concept of placing prisoners in extremely solitary environments, which certainly did nothing to contribute to their mental stability, is precisely the sort of cruel punishment that many of these modern ideas are pushing against. The Port Arthur Separate Prison in particular was an experimental facility of silence and strict control.
World’s Smallest Prison
(image via: zentner)
This particular facility isn’t modern, futuristic or revolutionary, but it’s definitely interesting. The smallest jail in the world fits just two prisoners. Sark Prison is found on the Island of Sark in the English Channel; it’s still used for overnight stays despite its diminutive size and lack of permanent staff. Anyone requiring more than a single night’s lockup is sent to a more standard prison on another part of the island.
LEED-Certified Butner Federal Prison
(image via: mnn.com)
The North Carolina facility where notorious scammer Bernie Madoff is living out the remaining years of his life is America’s one and only LEED-Certified prison, meaning it has met the U.S. Green Building Council’s standards for sustainable design. Bicycle storage, alternative fuel stations, water-smart landscaping, optimized energy performance and reduced greenhouse gas emissions are among its notable features. You might imagine that this kind of eco-friendly design would be more expensive and thus, not a great example for other cash-strapped prisons around the country to follow, but that’s not the case. The measures taken to make the building so efficient and green have actually helped the facility save money.
Bastoy Island Eco Prison
(images via: bastoyfengsel.no)
“Is Bastoy the place for you?” asks the Bastoy Island website beside idyllic photographs of sunsets, snow and sleigh-pulling horses. You’d better hope not, unless you’ve committed some kind of crime, because this place is not a resort, it’s a prison – though you’d never know that looking at it. Bastoy Island is an experimental minimum-security ‘eco prison’ where 115 ‘residents’ eat organic food and enjoy cross-country skiing, tennis and other activities once they have completed their mandatory hard labor on the farm. The prison warden says that this place is such a nice place to live, he worries more about all of the curious outsiders who find their way onto the property than about inmates escaping.