The road to hell

The road to hell. How the protection of law was lost is a fascinating piece about the state of the modern American justice system.  It begins with a consideration of the impact of Sarbanes-Oxley and a brief history of how previous attempts at financial regulation have lead to this point.  As the article says:

Reformers assume that rules can substitute for character, and they ignore the unintended incentives created by rule making.

which could be read as the more familiar:

The road to hell is paved with good intentions.

The article then delves into the thoroughly murky world of justice US style.  Some highlights:

The congressional delegation of lawmaking power to regulatory agencies.  Delegation combined statutory authority and enforcement authority in the same hands. The bureaucrats’ ability to define criminal offenses by their interpretation of the regulations that they write gives regulatory police vast discretion. A cooperative “offender” may get off with a civil penalty, whereas a person who sticks up for his rights or a person who presents a high profile opportunity to an ambitious prosecutor may receive a criminal indictment. The bureaucrats’ ability to create criminal offenses spontaneously by interpretation makes law uncertain and incapable of fulfilling its purpose of commanding what is right and prohibiting what is wrong.

Plea bargains have corrupted the justice system by creating fictional crimes in place of real ones. The practice of having people admit to what did not happen in order to avoid charges for what did happen, or is alleged to have happened, creates a legal culture that elevates fiction over truth. By making the facts of the case malleable, plea bargains enable prosecutors to supplement weak evidence with psychological pressure. Prosecutors pile on charges, as in the Mike Milken case, until the defendant or his lawyers throw in the towel. Many innocent people cop a plea just to end their ordeal.

In our book, The Tyranny of Good Intentions, Larry Stratton and I devote a chapter to asset confiscations. I have not kept up with forfeiture since the book was published in 2000. According to the latest information we had at that time, the 1984 forfeiture provision, which targeted drug trafficking, had been expanded to cover 140 other federal criminal offenses. Scores of similar state and local forfeiture laws have been added to the books. According to former House Judiciary Committee Chairman Henry Hyde, Florida, Texas and other states permit civil forfeiture for any criminal activity. New Jersey allows forfeiture for any alleged criminal activity.

The innocent owner’s defense is extremely weak. Police and prosecutors have taken advantage of it. Levy reports that in 80% of forfeiture cases no charges are filed against owners of confiscated property (Levy, 1996). In other words, the confiscations acknowledge that the owners whose properties were seized are innocent of the alleged criminal activity for which their property was confiscated. As Rep. Hyde said, Americans face “endless possibilities to be caught in the snare of government forfeiture” (Hyde, 1995, 10).

The Patriot Act and follow-up proposals are destroying habeas corpus and permitting warrentless searches and spying. Supposedly, these police state measures are directed toward terrorists, but they are certain to expand, just as asset freezes and forfeitures expanded. On May 21 of this year the Washington Post reported that the Justice Department acknowledged in a 60-page report to the House Judiciary Committee that it has used many of the anti-terrorism powers granted in the wake of September 11 to pursue defendants for crimes unrelated to terrorism, including drug violations, credit card fraud and bank theft. Some people say police and prosecutors will protect the innocent by exercising careful discretion. If asset forfeiture is the example of police discretion, 80% of those incarcerated under the new anti-terror laws will be innocent.

I think that you'll find the whole thing worth reading and encourage you to do so (especially if you live in the US).

[Curiouser and curiouser!]

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