It's a common complaint: "There oughta be a law against [fill in
the blank]." But these days, we hardly need more laws. Too many
things are already illegal.
Businessmen, doctors and even schoolchildren have been charged with crimes and hauled into court -- and have actually spent time in jail -- for engaging in activities that shouldn't have been illegal in the first place.
Consider the case of the refinery manager Hubert Vidrine, accosted at his office by a SWAT team.
In 1996, federal agents armed with semi-automatic weapons raided the Canal Refining Company in Louisiana. According to a civil suit Vidrine recently filed, the agents accused him of storing hazardous waste and lying about it. They ransacked his office. They told employees that Vidrine was poisoning them. For several hours they refused to allow them to use the facilities or phone loved ones.
Despite the urgency and extreme measures used in conducting the raid, it took several years for the feds to file charges. In 1999 Vidrine was charged with one count of knowingly storing hazardous waste on the property. Had he been convicted, he could have been imprisoned for up to five years and fined as much as $50,000 for each day the waste was improperly stored.
That punishment would seem severe even if Vidrine had broken the law. But he hadn't. The alleged "hazardous waste" was in fact used oil the refinery was planning to reprocess. According to federal regulations, it shouldn't have been considered hazardous waste.
Still, the charges weren't dismissed for almost four years, and then only when the government admitted it couldn't find test results that supposedly implicated Vidrine, tests that had supposedly been carried out at the request of the government's only witness to the "crime." Vidrine's legal brief says he spent more than $180,000 fighting criminal charges that should never have been filed.
But cases such as Mr. Vidrine's aren't the only example of the overcriminalization of our society. We're also being swept under by "zero tolerance" laws, as two boys in Oregon learned.
In February, two 13-year-olds trotted through the halls of their middle school, smacking girls on the bottom as they passed -- immature behavior, to be sure, but not something that should be punishable as a criminal offense.
The vice principal and a police officer assigned to the school disagreed. They kept the boys in an office for hours and eventually arrested them. Both spent five days in a juvenile detention facility. They were eventually charged with sexual abuse, charges dropped only after the girls who had supposedly been abused requested it.
"These cases are devastating to children," the district attorney said when explaining why he'd pursued the case, even "life-altering." And spending five days behind bars isn't? These boys certainly need better parenting and appropriate discipline. But treated as criminals?
Things haven't always been this way. Until recent decades, an action had to meet two standards before it could be considered a crime. The law required that an individual must 1) cause or attempt to commit a wrongful act and 2) do so with some form of intent to commit that act.
However, the Supreme Court has taken steps to undermine these fundamental protections. In United States v. Dotterweich, Justice Frankfurter wrote that Americans now depend on "the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries" to determine what is and isn't criminal conduct.
The legislative branch has handed much of its lawmaking power to bureaucrats, prosecutors, trial judges and jurors. But it violates the Constitution for lawmakers to cede their powers to other branches of government.
"Our reason is our law," Milton wrote in "Paradise Lost." And to be just, our laws must be reasonable. Too many Americans are being treated as criminals by an out-of-control criminal justice system that is abandoning the rule of reason. Justice demands we change that.
Ed Feulner is president of The Heritage Foundation (heritage.org).