Can we agree on the basics?

Glenn Reynolds linked a very thoughtful post by Pat Nolan at NRO about the Gibson Guitar raid, and I am in 100% agreement on the central point about federal overcriminalization.

America has become overcriminalized. The Gibson raids highlight how America’s criminal-justice system has become a Rube Goldberg contraption of laws and sentencing policies that have no consistent focus — and there is little relationship between the length of the prison sentence and the harm caused by a violation.

When the Constitution was adopted, there were three federal crimes: treason, piracy, and counterfeiting. Now, there are more federal crimes than we can count — literally. The Congressional Research Service tried to tally the number of crimes sprinkled throughout federal codes, but gave up at 4,450. That does not include more than 10,000 regulations that carry criminal penalties. It’s a wonder anyone can survive 24 hours without violating some obscure statute or rule.

I totally agree.

But I wish the writer had gone a bit further in his earlier condemnation of SWAT-team raids:

The Gibson assaults are further evidence that America’s criminal-justice system has strayed far from its central purpose: stopping the bad guys from harming us. SWAT-team raids were designed to arrest notoriously violent gangsters, and stop them from destroying evidence. Now, the police powers of the state are being used to attack businesses. (Were the feds afraid that the Gibson workers would flush the guitars down the toilet?)

I don’t care whether the feds were afraid of evidence destruction or not. If the fear of destroying evidence is grounds for using deadly force, I submit — again — that Americans are living in a police state.

I also agree with the author that what lies at the heart of the debate over overcriminalization is essential a debate over the nature of morality.

By unpinning criminal law from its moral roots, we now impose the harshest sentences on activities that are deemed improper by those with the loudest voices. Thus, the lobster fishermen who shipped their catch in the improper containers received longer sentences than some murderers. And Gibson is raided by federal commandos not because the company poses a threat to anyone, but merely because the American government has found it to be in violation of India’s labor laws.

This is government by whim, and these “whim” crimes are not based on evil intent. In fact, they require no intent at all.

Is the same not true about drug possession? Can anyone tell me by what standard possession of drugs is immoral? What are drugs? Drugs on certain DEA lists for which a medical prescription was not first obtained? Why  is that any more immoral than possession of the same drugs with a prescription? Where does the immorality lie? In the drugs, or in the lack of proper paperwork? How are undocumented drugs (or, for that matter, even legal drugs like alcohol or cigarettes) different in morality from undocumented lobsters, or undocumented wood?

The answer in some minds is that drugs are dangerous to the individual user and to society, so they need to be controlled by gatekeepers. But can’t the same argument be made about protecting the environment? It certainly is, and environmentalists steep themselves in moral arguments. Just as drugs pollute, so does carbon. And in the name of these views of morality, there are dire threats from which we must be saved.

The writer concludes that we need to bring criminal laws back to basics:

Congress needs to act quickly before the federal government compresses, enervates, extinguishes, and stupefies us. They need to bring our criminal laws back to basics: Get off the backs of businesses and keep us safe from truly dangerous and morally wrongful behavior.

I agree. However, I suspect that many would disagree over precisely what sort of things constitute “truly dangerous and morally wrongful behavior.”

I don’t know the author’s view about whether drugs are immoral, but if we get back to basics, virtually all of the drugs targeted by law enforcement today were legal before 1914.

Once again, I ask. Were the pre-1914 drug users guilty of immorality? If not, then how do today’s users become immoral other than by the fact that they are immoral because what they are doing is illegal?

If illegality=immorality, then all illegal things are immoral, including undocumented wood, or the failure of an American company to abide by Indian labor laws.

In my mind, “back to basics” would mean a return to the distinction between malum in se and malum prohibitum.

What happened?

Did drugs evolve from being malum prohibitum to being malum in se?

I’d like to get back to basics, but have the basics changed?


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11 responses to “Can we agree on the basics?”

  1. Simon Avatar
    Simon

    The job of the DEA is to protect the cartels. Legal and illegal.

  2. Jenny Avatar

    I don’t get the Legal but on this one point we can agree: the drug laws of the US are grotesque and harmful to us as individuals and as a nation.

  3. Veeshir Avatar

    malum prohibitum means malu in se now that we’ve ceded morality to the gov’t.

  4. Eric Avatar

    If malum prohibitum is malum in se, then morality becomes infinitely flexible and subject only to governmental whim.

    Sudafed is immoral. So are illegal feathers.

    I know I’m belaboring the point, but I think the line was crossed when they criminalized narcotic drugs.

    (At least in the case of alcohol the Constitution was amended; in that sense I think the war on booze was built on a higher moral standard than the war on drugs.)

  5. Veeshir Avatar

    Sudafed is immoral. So are illegal feathers.

    Yes.
    A;though, illegal feather are worse, they’re crimes against Gaia.

  6. rhhardin Avatar

    You’d think, a priori, that destroying evidence is a right. After all it’s your evidence.

    The law isn’t for the convenicence of the state.

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