August 22, 2008

August 22, 2008 | Commentary on Legal Issues

Jail could be the location of your next business meeting

A recent brochure from the National Federation of Independent Business Legal Defense Fund depicts a business man, dressed in a jail-type orange jumpsuit, sitting opposite his lawyer in a prison visiting room. The caption reads, "This could be your next business conference!"

It's no joke. Increasingly, business people in the United States are being targeted by Congress, federal enforcement agencies and government prosecutors.

Newly created crimes attach serious penalties to conduct which has never before been considered a criminal offense. That means average "law-abiding" Americans can now find themselves facing criminal investigation or even prosecution. Moreover the protections traditionally available to safeguard those charged with crimes have been greatly eroded.

Traditionally, English and American law required proof beyond a reasonable doubt of two fundamental elements to convict a person of a crime: The defendant must have committed a particular type of act forbidden by law (usually something that practically all civilized society has considered inherently wrongful), and there must have been the intent to commit the act. These substantive requirements limited the government's power to punish. For example, they assured that unintentional or unknowing acts would not result in criminal conviction.

Yet over the past few decades, an unprecedented expansion of criminal law has, in certain criminal statues, largely eliminated these substantive checks on government power. Today, criminal law covers many areas of conduct that are neither inherently wrongful, nor committed with any wrongful intent.

Accompanying this expansion of criminal law is the tremendous growth of government regulation that has taken place since the 1930s. How bad is it? So bad that no one can tell for sure how many federal crimes are on the books.

But this much we know: In addition to some 4,500 specific crimes enacted by Congress, there are an estimated 10,000 regulations, promulgated by executive branch regulatory agencies, each of which carries a criminal penalty for violation.

The sheer volume of the criminal law ensures that it is virtually unknowable by citizens and government officials alike. As a result, almost anyone - especially those in business - can find themselves inadvertently on the wrong side of the law.

Nowadays, making a mistake on a government-mandated form, failing to comply with obscure environmental regulations, or even running afoul of highly dubious foreign regulations, can get you arrested.

Even worse, managers can be convicted if a person under their general supervision commits a crime - even when the offending act was done without the manager's knowledge or against the manager's explicit instructions.

When a spectacular case makes news headlines, too frequently Congress will carelessly pass a new law. Usually, it's unnecessary. Often, it's so broadly worded that it can just as easily imperil the innocent as punish the guilty.

But the multiplicity of criminal offenses isn't the only thing that might ensnare the unknowing business person. The way these laws are sometimes enforced, the failure to observe procedural safeguards and over-zealous prosecutions combine to increase the potential that innocent people in the business community will be trapped by the criminal justice system.

In some cases, business executives have been coerced into waiving the attorney-client privilege, which is an important bulwark against miscarriages of justice. Some have been treated like "Mafia kingpins," subjected to Racketeering-Influences Corrupt Organizations (RICO) prosecution for matters that have nothing to do with the original purpose of that law, which was supposed to pertain to criminal syndicates.

Multiple charges under separate counts are brought for essentially the same act. Counts of "money-laundering" are added to unrelated charges, thus increasing the possible sentence. The purpose of these tactics is to coerce a plea, regardless of guilt.

Most prosecutors are conscientious and fair. But for some, the temptation of a vast array of possible crimes and the availability of over-reaching tactics is too great. Forgetting that their primary responsibility is to see that justice is done, they will seek a conviction at the expense of justice.
Over-criminalization and over-zealous prosecutions constitute a troubling expansion of government power. As such, they pose a great threat to individual liberty. Without limits protecting citizens from the haphazard application of criminal punishment, law becomes a tool of oppression rather than protection.

That is why The Heritage Foundation has a major project going forward to correct the "over-criminalization" of the law and to restore the procedural safeguards and traditional concepts of justice that have long protected the innocent and have ensured the liberty of the American people.

Mr. Meese, who served as U.S. Attorney General under President Reagan, is Chairman of The Heritage Foundation's Center for Legal and Judicial Studies.

About the Author

Edwin Meese III Ronald Reagan Distinguished Fellow Emeritus
Edwin Meese III Center for Legal and Judicial Studies

First appeared in DCExaminer.com