The Economist has an excellent article about criminal justice in America, including valuable observations about the over-abundance of victimless crimes and incomprehensible laws that result in prison time for failing to understand the intricacies of government regulations. My only quibble is that the article could have paid more attention to the potential value of locking up people who commit real crimes such as rape, murder, burglary, and assault. I realize I’m nit-picking, and I’m fully aware that prosecutors can engage in abuse even when targeting genuine criminals, but there are some people who belong in jail.
Three pickup trucks pulled up outside George Norris’s home in Spring, Texas. Six armed police in flak jackets jumped out. Thinking they must have come to the wrong place, Mr Norris opened his front door, and was startled to be shoved against a wall and frisked for weapons. He was forced into a chair for four hours while officers ransacked his house. They pulled out drawers, rifled through papers, dumped things on the floor and eventually loaded 37 boxes of Mr Norris’s possessions onto their pickups. They refused to tell him what he had done wrong. “It wasn’t fun, I can tell you that,” he recalls. Mr Norris was 65 years old at the time, and a collector of orchids. He eventually discovered that he was suspected of smuggling the flowers into America, an offence under the Convention on International Trade in Endangered Species. This came as a shock. He did indeed import flowers and sell them to other orchid-lovers. And it was true that his suppliers in Latin America were sometimes sloppy about their paperwork. In a shipment of many similar-looking plants, it was rare for each permit to match each orchid precisely. In March 2004, five months after the raid, Mr Norris was indicted, handcuffed and thrown into a cell with a suspected murderer and two suspected drug-dealers. When told why he was there, “they thought it hilarious.” One asked: “What do you do with these things? Smoke ’em?” Prosecutors described Mr Norris as the “kingpin” of an international smuggling ring. He was dumbfounded: his annual profits were never more than about $20,000. When prosecutors suggested that he should inform on other smugglers in return for a lighter sentence, he refused, insisting he knew nothing beyond hearsay. He pleaded innocent. But an undercover federal agent had ordered some orchids from him, a few of which arrived without the correct papers. For this, he was charged with making a false statement to a government official, a federal crime punishable by up to five years in prison. Since he had communicated with his suppliers, he was charged with conspiracy, which also carries a potential five-year term. As his legal bills exploded, Mr Norris reluctantly changed his plea to guilty, though he still protests his innocence. He was sentenced to 17 months in prison. …Justice is harsher in America than in any other rich country. Between 2.3m and 2.4m Americans are behind bars, roughly one in every 100 adults. …As a proportion of its total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan. …The system has three big flaws, say criminologists. First, it puts too many people away for too long. Second, it criminalises acts that need not be criminalised. Third, it is unpredictable. Many laws, especially federal ones, are so vaguely written that people cannot easily tell whether they have broken them. …Badly drafted laws create traps for the unwary. In 2006 Georgia Thompson, a civil servant in Wisconsin, was sentenced to 18 months in prison for depriving the public of “the intangible right of honest services”. Her crime was to award a contract (for travel services) to the best bidder. A firm called Adelman Travel scored the most points (on an official scale) for price and quality, so Ms Thompson picked it. She ignored a rule that required her to penalise Adelman for a slapdash presentation when bidding. For this act of common sense, she served four months. (An appeals court freed her.) …There are over 4,000 federal crimes, and many times that number of regulations that carry criminal penalties. When analysts at the Congressional Research Service tried to count the number of separate offences on the books, they were forced to give up, exhausted. Rules concerning corporate governance or the environment are often impossible to understand, yet breaking them can land you in prison. In many criminal cases, the common-law requirement that a defendant must have a mens rea (ie, he must or should know that he is doing wrong) has been weakened or erased. “The founders viewed the criminal sanction as a last resort, reserved for serious offences, clearly defined, so ordinary citizens would know whether they were violating the law. Yet over the last 40 years, an unholy alliance of big-business-hating liberals and tough-on-crime conservatives has made criminalisation the first line of attack—a way to demonstrate seriousness about the social problem of the month, whether it’s corporate scandals or e-mail spam,” writes Gene Healy, a libertarian scholar. “You can serve federal time for interstate transport of water hyacinths, trafficking in unlicensed dentures, or misappropriating the likeness of Woodsy Owl.” “You’re (probably) a federal criminal,” declares Alex Kozinski, an appeals-court judge, in a provocative essay of that title. Making a false statement to a federal official is an offence. So is lying to someone who then repeats your lie to a federal official. Failing to prevent your employees from breaking regulations you have never heard of can be a crime. A boss got six months in prison because one of his workers accidentally broke a pipe, causing oil to spill into a river. “It didn’t matter that he had no reason to learn about the [Clean Water Act’s] labyrinth of regulations, since he was merely a railroad-construction supervisor,” laments Judge Kozinski. …Some prosecutors, such as Eliot Spitzer, the disgraced ex-governor of New York, have built political careers by nailing people whom voters don’t like, such as financiers.
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Just horrifying… Crimes without a victim are the road to totalitarian government and extreme oppression. When there is a victim, the victim will fight back (or the victim’s family if the crime is murder) and this fact curbs those crimes . No victim, no crime and so no one fights back, so billions of those non-crimes will be perpetrated which means millions people can be jailed for non-crimes. But that means the government has the power to put to jail, for non-crimes, almost anyone that opposes them.
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George’s comments need to be tempered by the fact that he knowingly violated an international treaty- and, therefore, federal law- by intentionally mislabeling plants, trusting that the feds wouldn’t know the difference between relatively common species and the endangered (and much more lucrative species) he was importing. Note from the records seized from his own computer; “phrags” (the genus Phragmipedium) are listed on CITES Appendix I, which are afforded the highest level of protection in international commerce. The genus Maxillaria could look similar to phrags given an inexperienced agent- but he imported through Miami, which is the port of entry for more orchids than anywhere else in the US, and therefore has experienced agents at hand.
Norris to Arias:
And I don’t see any problem with shipping Phrags *** Make sure they are wrapped with moss and paper and in plastic and marked Maxillarias as before.
Arias to Norris:
In this year is not posible to receive the CITES for Phragmi. because is necesary many paper; is probably the Agriculture inspection in December and in March 2001 I will have this CITES. Is posible to send Ph. species only with other name (Maxillarias)
Norris to Arias:
I have a new customer who collects Ornithocephalus.*** Please add some to my order and just put them in there anywhere. I need 5 of each kind you have. You can call them a Maxillaria. They are not inspecting hard at all. They open a box and look at maybe 5 plants and if they are clean the order passes through.
This is like trying to smuggle in Cuban cigars by switching the labels to “Made in Dominican Republic.”
Don’t be fooled by what Norris has to say. He was knowingly violating the law, and acts shocked and surprised when he gets thrown in jail.
At this point, tar and feathers are the only things that will slow down out-of-control prosecutors, regulators and bureaucrats and the legislators who enable them.
If we can’t bring back the common law requirement of mens rea, then we must revive the common law tradition of self-help.
Government is nothing but organized corruption.
Its only saving grace is that it is preferable to unorganized corruption.
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This problem is not confined to the criminal realm. You can see the same sort of situation in any inspection by the bureaucracy.
The plant I co-owned was cited for railings that were too-high in a one floor building. Forget the absurdity of that, for a moment, and consider this: Three months later, after we had replaced the railings to comply with the first inspector, a second inspector came out and cited us for railings that were too-short.
The heck of it was: They were both correct. Our attorneys went through the laws, and found out that both of the inspectors were correct. According to the law, we had to have a railing. According to the law, there was no height of railing we could install to be compliant with all of the laws on the books. Both inspectors knew different sections of the law better, so they cited us for different things. We were stuck with the fines either way, of course.
Nobody fined these inspectors for failing to know the laws they are sent to enforce. Nor should they have done so. If the people who enforce the laws professionally cannot figure them out, how can anybody expect a citizen to figure them out? More importantly, how can the government legitimately hold people responsible for violating vague or contradictory laws when nobody is able to know all of them or has any intent to break them?
Big government is shooting itself in the foot with this nonsense. Not only are people losing respect for the law, they are fleeing it. My partners and I moved our plant to China, and we import the stuff now. It’s cheaper than dealing with all of the morons in the government.
As a final note: Big government inevitably equals corruption. All of this vagueness and leeway gives a lot of room for interpretation to the people performing inspections. They can easily ignore significant problems if they are too busy counting their bribe to measure railings. Big government also creates the incentive for corruption: A lot of these bureaucrats can either close or litigate in to bankruptcy a small business with a stroke of their pen. That creates a very real incentive to bribe, rather than see your business shut down over railings.
“Prosecutorial Discretion” is such a wonderful thing in the hands of the morally compromised. Once a self-appointed “angel of the Lord” passes judgment on some mere mortal who has , for whatever reason, offended the bureaucrat – then the power of the state can be brought to bear to punish the sinner. For what “sin”? – Don’t worry, they’ll find one
[and if the use of religious terms creeps you out – GOOD. For you are the non-believer now subservient to the subjective, personal, judgment of those who are not-to-be-questioned.]
Certainly, some prosecutors are motivated by resume considerations: “ten major felons put behind bars this year!”, but I suspect that one of the primary motivations for these abuses, like the motivation for “zero tolerance” rules in schools, is racial quotas. If you didn’t throw people in prison for violating arcane regulations and didn’t suspend kids at school for drawing pictures of guns, then the statistics on race would be even more unbalanced on the rates of punishment.
@Rick
What about a system where the state has to pay the legal defense costs for everyone who is acquitted or has their case thrown out, even on technicalities? Because that would result in tax payers having to pay a lot of people’s defense costs it would make prosecutorial decisions and conduct a lot more salient to the average voters, who likely does not pay attention to such things unless they directly impact him.
If we were to make police officers and prosecutors personally liable for abusive tactics and prosecutions, we could expect a lot more care in cases like George Norris. As it is now, there is no real penalty for overzealous performance.
They talk about the huge number of ppl in US jails… what they seem to forget is about 20%+ of those ppl are illegal aliens or non-US citizens. When you remove on the 3rd world crime our crime and prison population are lower then most Euro countries.
I do completely agree however that the government is huge, laws today are about either conforming to “international laws” or about extorting money from citizens and gaining more and more control over those citizens.
The examples given here are outrageous examples of our “out of control” bureaucrats harming law abiding citizens.
The government, quite simply, has grown too large and too destructive to the citizens it is supposed to serve.
Common sense never seems to prevail; and from the police enforcement of these nonsensical laws to the judicial system which upholds this CRAP, no one intervenes on the side of the innocent citizen caught up in a web of incompetence and government corruption.
What to do? Short of killing all the lawyers, I think a New American Revolution is needed to “break the legs” of politicians and lawyers (judges) who allow this to continue.
http://video.google.com/videoplay?docid=-4097602514885833865#
This will help everyone who watched it…
That is a fair point, but I think that if the authors of the article went down that road it would require a much broader discussion on just what the right amount of punishment is and what values (rehabilitation, retribution, quarantine) should influence a sentence. While this is an important question that needs to be discussed it would require at least a double issue of the magazine.