Saturday, March 6, 2010

Thank the Lawyer. Almost All Acts Will Be Criminalized

Because most of these laws have no scientific validity, they are a bunco operation by the lawyer in rent seeking. Rent seeking is a synonym for an armed robbery. Pretextual laws should be crimes themselves. They are theft. The legislators, the judges, and the prosecutors, even the jurors involved in their enforcement should be subject to arrest, and to tort litigation. Because pretextual use of the law is really an intentional tort, exemplary damages should apply.

If torts is a substitute for violence, then the obverse, self-dealt lawyer immunity justifies violence. If there is no legal recourse against these crooks (there isn't, at present), then the public self-help should begin with a boycott by all product and service providers. If they fail to learn, the lawyers should be driven out of town. If they persist, the public must protect our nation from these predators by any means necessary.

"Cato Policy Report, January/February 2010
The Criminalization of Almost Everything

When laws grow so voluminous and vague that they oppress those who live under them, society can become as unlivable as if it were lawless. Subject to the arbitrary scrutiny of prosecutors overcome by ambition for their own 15 minutes of fame, ordinary citizens face the horrors of becoming criminal defendants. At a Cato Book Forum in October, Harvey Silverglate, author of Three Felonies a Day, and Tim Lynch, editor of In the Name of Justice and director of Cato's Project on Criminal Justice, discussed the growing threat of federal criminal law.

HARVEY SILVERGLATE: An average, busy professional gets up in the morning, gets the kids to school, goes to work, uses the telephone or e-mail, has meetings, works on a prospectus or bank loan, goes home, puts the kids to bed, has dinner, reads the newspaper, goes to sleep, and has no idea that, in the course of that day, he or she has very likely committed three felonies. Three felonies that some ambitious, creative prosecutor can pick out from that day's activities and put into an indictment.

In his foreword to my book, Alan Dershowitz discusses his time litigating cases in the old Soviet Union. He was always taken by the fact that they could prosecute anybody they wanted because some of the statutes were so vague. Dershowitz points out that this was a technique developed by Beria, the infamous sidekick of Stalin, who said, "Show me the man and I'll find you the crime." That really is something that has survived the Soviet Union and has arrived in the good old USA. "Show me the man," says any federal prosecutor, "and I can show you the crime." This is not an exaggeration.

How does this play out in the United States? To some extent, the weapon is aimed at unpopular citizens and groups. It isn't the primary impetus, but it is certainly a tool, for example, for going after Muslims or any political opponents who seem to be standing in the way of a prosecutor's political ambitions. For the most part, though, these prosecutions are random. They sometimes have to do with the ambitions of prosecutors and sometimes there are prosecutors who think it's their job to clean up the world or country. But, fundamentally, I don't understand the motives behind the use of these weapons. I'm not a sociologist, I'm not a psychiatrist or psychologist, I can just tell you that these weapons are sprung with alarming and increasing frequency.

I predict that we will see, in the next couple of years, a tidal wave of prosecutions growing out of the financial crisis. Different people from different perspectives have different explanations of why we had a crash. But the Department of Justice is going to have figured it out: fraudulent individuals caused all this. It had nothing to do with government regulation. It had nothing to do with culture. It was individuals who have committed crimes that caused all our woes.

Take an example of what I think is comic: During the height of the crash, bank officers, bank presidents, and brokerage officers talked to the press around the clock, because the press was inquiring: "Is your bank about to go?" "Are you sufficiently liquid?" These bank officers and presidents kept saying, "As far as I can tell right now we are liquid, we'll make it through this, I think we're going to be okay." There will be a lot of prosecutions of bank officials because they had the temerity to predict that their bank was going to make it through okay — when, of course, it didn't."

"TIM LYNCH: It is my unhappy responsibility to inform you that things are even worse than Harvey Silverglate says.

But let me back up and ask a basic question. What do we want from our criminal justice system? Boiled down, we want the government to have enough power to identify and remove criminals from peaceful civil society, but not so much power that it oppresses the rest of us. But that seems to be what is happening today.

The power wielded by police and prosecutors is immense. We have to remember that all it takes is one raid on a home or a business, one high profile arrest, or an indictment that's announced on the steps of a courthouse, and a person's life can be changed forever. Reputation gone. Jobs gone. Friends gone. And that's even before one gets the opportunity to defend himself in a court of law. And once you find out how much it's going to cost you to defend yourself in a court these days, you'll find that you're facing financial ruin. Retirement savings gone. Children's college fund gone. And, most likely, house gone."

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