- "The Left Is Right: America Is An Unjust Society."
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- Startling words to come from Paul Craig Roberts, 61,
an architect (as assistant secretary of the Treasury) of the Reagan tax-cut
revolution and now a syndicated columnist and chairman of the Institute
for Political Economy. But he's not talking about discrimination or the
unequal distribution of wealth. The problem, he says, is this: "Americans
are no longer secure in law-the justice system no longer seeks truth and
prosecutors are untroubled by wrongful convictions."
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- Recently, with coauthor Lawrence M. Stratton, a lawyer,
Roberts published The Tyranny of Good Intentions: How Prosecutors and Bureaucrats
Are Trampling the Constitution in the Name of Justice (Forum, $25). In
it he blames the Reagan and Bush administrations' wars on crime and drugs
for institutionalizing many of the problems he sees developing. In particular
he blames the near-sextupling of assistant U.S. attorneys in the early
1980s for a fatal dilution in prosecutorial standards. The prosecutions
are not making the country safer for the law-abiding. They are making it
more dangerous.
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- Historically, Roberts argues, Americans enjoyed the protection
of what were termed "the Rights of Englishmen" by 18th-century
jurist Sir William Blackstone, whose Commentaries on the Laws of England
was a bestseller in the 13 colonies. The broadest of these was the right
to due process. That meant punishment by dint of laws and evidence rather
than, as has been the case in much of human history and is still the case
in much of the world, by dint of a dictator's fiat. A related notion is
that there should be no bills of attainder, legislation designed to criminalize
a specific individual.
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- Other rights: to have the confidential assistance of
an attorney; to confront adverse witnesses; to be protected from self-incrimination;
to demand that the prosecution prove not just an evil deed but an evil
intention (called mens rea); and to be protected from retroactive laws.
Another English concept was that the government should not go after people
by making arbitrary attacks on their property.
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- Most of these protections were enshrined in our Bill
of Rights. And yet most have been subtly but steadily eroded in the U.S.,
Roberts maintains. "They can seize anyone, and any property, at any
time," he says of today's law enforcement agencies. For example, civil
cases are now often criminalized, through "novel theories" of
the law invented by prosecutors to target specific defendants-very much
like a bill of attainder. Plea bargains, traditionally frowned on by English
courts because of possible coercion, now conclude 90% to 95% of federal
criminal cases, increasing the prosecutors' incentive to pile on indictments-in
effect, torturing the defendant-and, in the absence of a court test, reducing
the incentive for careful, or even honest, police work. You get an idea
of what is going on when you see a newspaper story about a crime (often
a white-collar crime) in which there is a detail like this: "If convicted
on all counts, so-and-so would be subject to a sentence of 120 years."
It seems that every misdeed becomes, in the statute books, a panoply of
offenses like money laundering and racketeering. By throwing a large statute
book at a defendant, the prosecutor can blackmail the culprit (or an innocent
person) into a plea bargain.
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- In the old days punishments were harsh, but they were
not arbitrary. You could be hanged for stealing a sheep, but you would
not also be charged with conspiracy to commit sheep stealing, willful evasion
of taxes on stolen sheep and diminishing the civil rights of the sheep
owner. Attacks on property? Asset forfeiture, aimed at drug dealers when
radically extended by Congress in 1984 but now covering 140 other offenses,
allows seizure on "probable cause"-i.e., at the discretion of
police and prosecutors. Proceeds go to the seizing agency, creating a corrupting
motive.
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- This erosion of Americans' historic protections has already
caused some public scandal. The spectacle of innocents losing homes, boats
and other property because tenants, customers and even passersby were using
drugs caused House Judiciary Chairman Henry Hyde to introduce legislation
this year attempting to rein in forfeiture. Roberts himself got interested
when he began writing columns about the Wenatchee, Wash. child sex-abuse
case, one of several curious Salem-witch-trial episodes in which numbers
of adults have been convicted on the word of children seized and coaxed
by investigators into testifying to imagined events.
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- But much of the erosion of historic protections is in
the area of white-collar crime-involving hitherto respectable, if less
than universally loved, corporations and businesspeople. Roberts here cites,
see FORBES (Dec. 1, 1997) in calling attention to the extreme punishments
meted out to people involved in essentially civil disputes with the government.
What we have at work is an unholy alliance between business-hating liberals
and crime-hating social conservatives. Roberts says that the Clinton Administration
Justice Department has even introduced a sort of affirmative action to
law enforcement, demanding quotas of white-collar prosecutions.
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- The results, as laid out by Roberts, are certainly disturbing.
Savings and loan financier Charles H. Keating Jr. was convicted of the
crime of employing fraudulent bond salesmen, even though there was no evidence
he knew of their activities, and the crime was not on the books when he
supposedly committed it. His conviction was overturned on constitutional
grounds after he served 4 1/2 years in jail. Washington lawyer Clark Clifford,
then in his 80s, was indicted by the federal government in New York for
allegedly accepting bribes in his role as chairman of First American Bankshares.
His personal assets were frozen and his credit card was rejected when he
tried to pay the chauffeur who drove him to the airport on his way back
to Washington, D.C. The case against Clifford was dropped when his partner
was acquitted. Exxon Corp. faced cleanup costs and civil tort damages after
the Exxon Valdez oil spill, but it was also indicted for intentionally
killing migratory birds without a hunting license and dumping refuse without
a permit. This "novel theory" allowed the Bush Administration
Justice Department to bring criminal charges, which carry massively higher
penalties. "Despite the absurdity of the charges," notes Roberts,
"Exxon lacked the confidence in our crumbling justice system to go
to trial." It settled for a $125 million fine.
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- The conservative establishment has greeted Robert's apostasy
with a stricken silence. His book has not yet been reviewed in the Wall
Street Journal or National Review magazine, despite his long connection
with both.
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- Still, conservatives in the field do concede that Roberts
has a point, while disputing other aspects of his analysis. "This
is something that must eventually surface as an issue with conservatives,"
says Walter Olson, editor of Overlawyered.com, a legal-reform Web site.
"He's right that criminal law, in certain narrow areas, has been made
a vehicle for extortion," says Edwin R. Jagels, a famously aggressive
district attorney in Kern County, Calif. But Jagels rejects the idea of
widespread prosecutorial misconduct and sees no alternative to plea bargains,
given crowded dockets. Justice Stephen J. Markman of the Michigan Supreme
Court similarly concurs, but adds: "The ultimate responsibility lies
with Congress and its penchant for overly broad criminal statutes."
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- Roberts, recently moved from D.C. to the Florida panhandle,
is unyielding. "They may have dented crime," he says of his former
allies, "but they've dented justice, too." With sweeping criminal
laws the prosecutor can find some technical charge to hang on just about
anybody.
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- Paul Craig Roberts is the author with Lawrence M. Stratton
of The Tyranny of Good Intentions : How Prosecutors and Bureaucrats Are
Trampling the Constitution in the Name of Justice.
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- http://www.vdare.com/pb/death_of_due_process.htm
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