Wednesday, September 28, 2011
Law: Spirit, Letter and Intent (Part II)
Originally the concept of law was straight forward: did you intend to commit a crime and did you know it was a crime? If so you could be tried. If not then it was not a crime. Theft was, well, theft. Whether you took a pig or a fence post the law said it was theft.
However, as time marched on things became less clear for a number of reasons.
As lawyers and court systems grew questions and opinions were written about situations to clarify them: I gave you a pig for a year and you did not give it back. Is that theft or contract law? A crime or a misunderstanding. When common misunderstandings became repeated over and over new laws appears - either at the behest of the court or legislatures.
Technology changed things. There were no electronic means of communication in 1776. There were no large monopolies, like the "the phone company" that handled all the these types of communications - more laws ensued.
Drugs like heroin and cocaine became a problem and were outlawed in 1913.
New government enforcement bodies were added: the DEA, the ATF, and so on.
There were conflicts about who should enforce laws: was it local, state, or federal.
Laws, like drug laws, enacted at the federal level ended up being enforced by local agencies - so more budget and other laws were created to support that.
So where does all this leave things today?
With theft the idea is clear: do not take something that is not yours.
But what about a RICO statute to attack some sort of polluter? What's the basic concept here? There is the RICO notion: a criminal enterprise linking various elements with conspiracy, criminal acts and a business-like operation. Then are polluters. But the polluters are not criminal organizations... So how does it all work?
What's the spirit of this law...?
The "criminals" in the case of RICO are doing things like organized theft or murder. Isn't organized theft still just theft? Of course. Aren't there already laws against theft? Yes.
Again, what's the spirit of the RICO law?
I think the "spirit" is to make the life of law enforcement easier.
Criminals and their lawyers can read statutes as well as legislators, cops and the DA. So they can devise systems to circumvent law, i.e., by not directly committing a theft by, say, breaking the theft up into parts that only together make up a theft (say convincing little old ladies to get cash from the bank and then setting up fake roof repair businesses to overcharge them for work not done). Each individual act in and of itself is not a crime - hence law enforcement is thwarted. Only the over all scheme is "crime" per se - and then only if proven to be done with intent.
So government undermines everyone else rights by reducing the "universal" burden of intent with something like a RICO law - which lowers the burden of proof across the individual activities and expands the "spirit" of theft into their own definition of criminal enterprise.
So RICO basically manufactures a "virtual" mens rea. Now in the case of, say, the mafia, this in fact may not be manufactured.
But what about RICO being applied elsewhere?
Since RICO can create mens rea out of nothing and allows disparate actions to be stitched together to make something a criminal act its application to someone like, for example, a polluter, makes it far easier to show that a crime was committed - even if there never was a crime in the first place.
Of course, the real problem is that today there is far less morality in play than, say one hundred years ago.
In the 1800's questions of people's character were still routinely solved with duels.
Were there still criminals, of course.
But, instead of the letter of the law to hold them in check there was punishment.
And punishment could be severe in those days. Hanging, being "shot on sight," that sort of thing.
Now over time, and particularly since the 1800's, punishment was deemed to be "too cruel" so it was reduced. Which, in turn, improved what criminal's saw as their "chance" to get away with a particular crime.
If I stole a horse I might get shot dead. But as the law changed I now might only be in jail for 30 days (with food and shelter which I needed in the first place and hence why I stole the horse). Suddenly the prospect and odds of stealing the horse don't look so bad.
In response, the government expanded the "letter" of the law, for example to address horse thieves. Adding more pages of criminal law at the state, local and federal level.
So all of this leaves us with an "arms race" of the "letter of the law" against whatever an imaginative criminal might invent. (This is why drug dealers collect the money on one street corner and deliver the drugs on another - the law says that you have to receive money in exchange for drugs if you deal - so if you only do one or the other there is less chance of being caught.)
Punishment often is not much worse (jail time) than life is to begin with - so the consequences of breaking the law are very minimal.
Meanwhile the government at all levels is expanding the "letter of the law" to include new and ever more specific crimes. For example, identity theft. Theft is theft. But now its somehow different if its an "identity" that's stolen - as opposed to say stealing an actual person (isn't that also stealing an "identity")?
In any case, because actual punishment, relative to lifestyle, has been minimized the "cost" of that punishment is diminished.
With a lower cost of punishment there is more crime.
With the advent of lawyers aiding criminals by finding "work arounds" so criminal activities don't break laws directly, there is more crime.
So government, in response to this, create ever more detailed laws with less and less clear concepts of mens rea while trying to stop this crime - and hence creating more crime.
So all of this is really a vicious circle which spirals out of control creating more and more possibilities that "the rest of us" are criminals without even knowing it (just Google "three crimes a day" - see this as an example).
And since mens rea is diminished you can be a criminal without intent.