Saturday, February 27, 2016

Law Run Amuck

Despite its reputation for freedom, the U.S. has the world's highest prison population rate, 716 inmates per 100,000 people. More than half the countries of the world have rates less than one-fifth of that. The United States' rate is six times that of Canada and six to nine times greater than the rates of Western European nations, with whom we have the most cultural and historical ties. Why is criminality so much higher here than in those countries? The U.S. has less than 5 percent of the world's population but 22 percent of its prison population.

For decades the U.S. prison system was a model for other countries. Then the trend reversed. From 1978 to 2014, our prison population rose 408%. Policies in those years led to stricter federal sentencing, more law enforcement—and an avalanche of new laws. The movement toward broad, punitive crime control and prison policies wasn't based on any scientific rationale, says Craig Haney, a professor at the University of California (Santa Cruz). "Rather, it was largely the product of a series of policy decisions made for largely political reasons [that] legislators and other politicians have found politically advantageous and expedient.”

Over the past decade Congress has created, on average, 50 new crimes per year. Not 50 new laws; 50 new crimes. That number has been far exceeded by the Obama Administration, which in its first five years created 439 new crimes, an average of 88 per year, bringing the total federal crimes to 4,889. That does not include the state and local crimes for which Americans can be prosecuted.

The laws are voluminous. The Affordable Care Act ran 1,024 pages; Sarbanes-Oxley 810 pages; and the Dodd-Frank Act 2,300 pages. These were crafted by congressional staff personnel, not even read by the senators and representatives, who couldn't possibly have the time to read them all even if they wanted to. Laws have grown so extensive and complicated that only lawyers, often working in teams, can know everything a law requires; but everyone must obey them, which they are unable to do. John Baker, a retired law professor who has studied this issue, states, “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime.”

It's not just the laws but the regulations. These are more voluminous than the laws and set forth new crimes beyond what the laws specify. Take the Obamacare regulations, for example. The bureaucracy wrote 30 words of regulations for every word in the legislation itself. The 109 final regulations pertaining to Obamacare contained more than 11 million words (11,588,500), compared to 381,517 words in the legislation. In 2013 the Code of Federal Regulations was over 175,000 pages, the print edition occupied 238 volumes, and the index alone took 1,242 pages. I am unable to find recent estimates of the number of federal regulations, but estimates back in 1991 ran as high as 300,000, and EPA regulations alone occupied more than 30 volumes of the Code of Federal Regulations. Undoubtedly those totals are much higher now.

Andrew P. Napolitano is a former New Jersey Superior Court judge and has written seven books on the U.S. Constitution. He writes that the federal government now regulates “the thickness of leather in shoes, the water pressure in home showers, the amount of sugar in ketchup, ad infinitum. It is impossible to avoid confronting federal regulation of human behavior unmentioned in the Constitution.”

Congress permits the Supreme Court to allow the regulatory agencies to create their own rules, which run roughshod over individual rights and often counter to the intent of Congress. Charles Murray, a scholar at the American Enterprise Institute, writes, “If a regulatory agency comes after you, forget about juries, proof of guilt beyond a reasonable doubt, disinterested judges and other rights that are part of due process in ordinary courts. The 'administrative courts' through which the regulatory agencies impose their will are run by the regulatory agencies themselves, much as if the police department could make up its own laws and then employ its own prosecutors, judges and courts of appeal.” Regulation has become a 4th branch of government, which usurps the functions of the other three branches.

The regulatory agencies create crimes by broadening the definition of their powers granted by Congress or the Constitution. EPA, for example, has extended its power under the Clean Air Acts and Clean Water Act far beyond the intent of Congress, and it has extended its Constitutional power over “navigable” waterways by claiming it includes swamps, land under water only a few week a year—or even only a few days— and potholes, ditches and culverts hundreds of miles from any actual navigable water. In 2010 just 3 of more than a dozen environmental statutes (Clean Air Act, Clean Water Act and Resource Conservation and Recovery Act) contained 9,000 pages on illegal behavior, any one of which can result in criminal prosecution. Here are three examples from one of my previous books (The Trojan Project) of people being sent to prison because of such crimes.

In Florida, Ocie Mills and his son served 21-month prison terms for dumping clean sand on two lots they owned and on which they were trying to build a house. They already had permission from the state of Florida, and Florida officials had told them no federal permit was necessary. But federal environmental police found them guilty of dumping a “pollutant” into “navigable waters of the United States.” After serving his full term in prison, Ocie attempted to get the verdict overturned just to clear his name, but he failed. Federal district judge Roger Vinson deplored the twisting of wording “worthy of Alice in Wonderland,” to stretch the meaning of “navigable water” to include dry land, clearly not even a wetland, much less a navigable water, but said he had to apply the law as it existed.

John Pozsgai, a Hungarian immigrant with little schooling bought an old industrial dump, cleaned it up by removing 7,000 old tires—and then committed the crime of adding topsoil without a federal permit. There was no question the environment was improved by his actions. That wasn't the point. The point was that he did so without a federal permit. Three years in federal prison.

Bill Ellen used to be the state environmental engineer who regulated wetlands. He ran a nonprofit wildlife rescue center and had been hired to convert part of an estate into a 103-acre wildlife sanctuary when he ran afoul of permit regulations. But he wasn't draining or filling wetlands—he was building them! The sanctuary was adding 45 acres of duck ponds. Ellen wasn't trying to evade government regulations; he had already obtained 38(!) permits and thought he was doing everything properly. But he was sentenced to six months in jail for dumping two loads of dirt on a portion of the property that the U.S. Soil Conservation Service had previously declared a non-wetland. A U.S. Corps of Engineers official using an expanded definition of “wetland” from a new government manual—so new it wasn't even in effect yet—declared Ellen guilty. He ended up being sentenced to 6 months in jail for a regulatory standard that didn't even exist at the time of his actions.

Historically, Anglo-American jurisprudence required a guilty act (“actus rea”) be accompanied by an awareness that the act is wrong (“mens rea” in Latin, literally meaning “guilty mind”) for there to be a crime. However, the federal government has increasingly imposed criminal penalties under what is known as “strict liability” laws. Bill Ellen's experience cited above is an example; clearly he did not know he was doing anything wrong.

Another example of criminal conviction lacking mens rea is the case of Abner Schoenwetter. He spent six years in a U.S. federal prison for violating an obscure Honduran regulation by packaging lobsters with plastic instead of cardboard. Under the Lacey Act, it is illegal for an American citizen to violate any fish or wildlife regulation of another nation. A reform measure, recently introduced by Congressman Jim Sensenbrenner, which would provide protection from this sort of injustice by a default “mens rea” rule has been opposed by President Obama.

The federal government's criminalization of human behavior continues to increase with no sign of it stopping, much less reversing. Our Constitution has been violated so often and so extensively that it no longer protects our rights and freedom as was intended. The growth and exercise of federal power has become so commonplace as to be viewed as acceptable or inevitable and render the Constitution irrelevant to the power structure in Washington. The Constitution mentions only three federal crimes: treason, piracy, and counterfeiting. Does anyone involved in creating the hundreds and hundreds of new federal crimes really care that they have no justification under the Constitution?

The Constitution grants the federal government only certain powers enumerated in that document. All others are reserved to the states or to the people under Article 10. The enumerated powers grant the federal government no power to print paper money, regulate the economy, establish a central bank (the Federal Reserve), provide housing, food stamps or many other things in which federal involvement is now widely accepted public policy. These abuses of federal power will never be corrected by the elected leaders in Washington who created them or their successors who continue to benefit from them politically.

There have been 27 amendments to the Constitution. These have all been accomplished by proposed amendments achieving a two-thirds vote in both house of Congress, followed by ratification in three-fourths of the legislatures of the states. But Article V of the Constitution provides an alternative route that bypasses Congress—which would never pass amendments such as I suggest. The alternative route is through approval of two-thirds of the state legislatures, which would trigger a call for a convention to consider amendments, which would then have to be ratified by three-fourths of the state legislatures.

(Black's Law Dictionary defines “constitutional convention” as: “A duly constituted assembly of delegates or representatives of the people of a state or nation for the purpose of framing, revising, OR amending its constitution.” [capitalization added] The enemies of amending the constitution claim that such a convention could result in throwing out the existing Constitution and framing a new one. However, those supporting such a convention have made it clear their purpose is to amend the constitution, not write a new one. It is clear from the Black's definition employing the word “OR” that such a convention can be simply for amending the Constitution. Nevertheless, to avoid confusion and deprive the enemies of such a convention of a lie with which to scare people, it is perhaps best to describe the reform effort as an Article V Amendments Convention, which is what is meant by the term Article V Convention. The further scare tactic that a “runaway” convention could result is absurd because ratification of any amendments would require approval by three-fourths of the state legislatures. )

In just the past month, the governor of Texas has called for an Article V convention to amend the Constitution, and Florida, West Virginia and North Dakota have passed resolutions to this effect in either their senate or house. Several other states seemed poised to add to the total. The campaign for government reform is gaining momentum!

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