Neither Left Nor Right, But Catholic . . . Is American Law Still Concerned With Justice?
By STEPHEN M. KRASON
(Editor’s Note: Stephen M. Krason’s Neither Left nor Right, but Catholic column appears monthly [sometimes bimonthly] in Crisis. He is professor of political science and legal studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and president of the Society of Catholic Social Scientists and a lawyer. Among his books are: Abortion: Politics, Morality, and the Constitution; Liberalism, Conservatism, and Catholicism; The Transformation of the American Democratic Republic; Catholicism and American Political Ideologies, and a Catholic political novel, American Cincinnatus. The views expressed here are his own.)
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Recent news stories make one wonder if our law is casting aside a concern about furthering justice and becoming increasingly unreasonable, unprincipled, and allowing itself to become a tool for furthering political bias, getting back at people, and “making examples.” All this is at the expense of our traditional Anglo-American legal norms.
We can start off with the spectacle of the two-year-long investigation of the 2016 Trump presidential campaign for something that is not even a crime: collusion (supposedly with Russia to influence the election). The spectacle of different people being charged with questionable “process crimes” — such as lying to investigators — and getting convictions via plea bargains as a result of threats and pressure tactics gave the appearance of prosecutors just wanting to nail someone to justify themselves.
This is even apart from how the entire investigation from the start smelled of a politically motivated fishing expedition and many in the Mueller investigating team were Democratic partisans.
One of those investigated, one-time Trump campaign manager Paul Manafort, was brought up on both federal and state charges mostly concerning financial irregularities. Cyrus Vance Jr., the Manhattan district attorney and scion of a long-prominent Democratic family, was able to maneuver to get Manafort into state custody after the federal charges and, shamefully, ordered him put in solitary confinement pending legal proceedings at the infamous Rikers Island Prison.
It is heavily populated by violent gang members and hardened criminals and has a long reputation for both poor treatment of inmates and inmate assaults on prison staff and in fact is slated for eventual closing because of this. It is hard to believe that Vance’s action was not the result of political calculation. Even the likes of Cong. Alexandria Ocasio-Cortes criticized Vance’s decision as subjecting Manafort to torture. Ultimately, the U.S. Justice Department intervened to override Vance’s action.
One of the most dramatic legal developments recently was the indictment for culpable negligence, child neglect, and perjury of the former Florida deputy who was stationed at Douglas High School in Parkland, Fla., when a gunman entered the grounds and murdered seventeen students and teachers. Such a criminal indictment of a law enforcement official is virtually unprecedented and, unbelievably, the deputy could face 100 years in prison.
It almost seems as if the law is treating him as if he were the mass murderer. Instead of aiming to see that justice was done, the indictment looked like an appeal to the mob to “make sure someone pays” besides the actual killer and the result of a political calculation to deflect public criticism about how the tragedy was handled.
Normally, the avenue the law provides for such a situation is civil suit. This seems to be another example — an especially striking one — of shifting matters that were traditionally in the realm of tort law into the criminal law arena. Are people now supposed to be subject to criminal prosecution for cowardice? Or, perhaps more likely in this case, for miscalculation about how to respond to a situation, or for following an established police protocol?
Is the deputy being singled out for prosecution when many others among the local police authorities could also be blamed for shaping policies about how to address such an occurrence? By contrast, the sheriff of Broward County where Parkland is located (who was the deputy’s superior) was merely suspended from office by Florida’s governor (and is now seeking to be reelected to his old job).
The fact that one of the charges is child neglect underscores the outrageous fact that the law for some time has been in the business of charging people with offenses that are nowhere defined. The usual people charged with child neglect — mostly not under the criminal law, but under quasi-civil provisions that can lead to children being put in state control — are innocent parents who are investigated by the child protective system because of poverty situations or for child-rearing decisions that someone doesn’t agree with.
How much justice is affronted is seen in the fact that both our legal tradition and sound ethics dictate that the state’s law must spell out precisely what behaviors are prohibited or expected of persons before they can be held accountable or punished for them.
Two cases in the news highlighted how the law is undercutting the right of people to defend themselves. In one (in New York State), a man in his mid-sixties was charged at by two people — both convicted felons, one of whom was on parole for a weapons violation — who had broken into his home. Fearing for his life, he grabbed a handgun that had been left in the house by his late father, whom he had lived with.
He had no idea if the intruders were armed — it turned out that they weren’t — but fearing for his life he fired and killed them. Afterward, he discovered himself — the victim of threatening criminal intruders — charged with felony possession of an unregistered firearm. It seemed as if the authorities had to find some technicality to charge him with after he tried to defend himself and his property. Also, were they more concerned with gun control than supporting citizens trying to defend themselves?
So much for the common law’s basic principle that “a man’s home is his castle” and thus he can use lethal force against intruders to defend himself in it. We have seen this principle whittled away for some time in American law, so now it seems that the dweller is somehow expected make a calculation about whether the person who broke into his home in the dead of night is a genuine threat to him before using deadly force and, if he is in error, he might find himself going to prison for homicide.
In the other case, in Florida, right after a divorce proceeding a woman’s car was rear-ended by her ex-husband as he tried to run her off the road (this was after she had gotten several restraining orders against him). He was jailed for that and, fearing that after his release he might come after her and try to harm or even kill her, she went to his apartment and searched for and found his gun that she then brought to the police (thinking that she was both protecting herself and avoiding a possible crime).
At the police station, she was arrested for “armed burglary” — even though she didn’t have a gun when she entered his apartment — and from his jail cell her ex-husband was allowed to press charges.
Such literalism about the law is shocking, and actually has the effect of undermining the rule of law and the justice it’s supposed to preserve. One could understand the officers perhaps explaining the potential legal issue to the woman, but not arresting her. Episodes like this make one think not only that police departments need to provide their officers with better training, but that having good judgment and common sense should be a requirement for their hiring.
Also, one wonders if the local legal authorities weren’t negligent in the first place by not requiring the husband to relinquish his gun after the protection orders.
On the civil law front, there have been ongoing legal efforts by families of the child victims of another terrible school massacre, Sandy Hook, to shut down the disinformation about the event that has been circulated for years by conspiracy theorists. Some have even claimed, absurdly, that the whole thing never happened and was an Obama administration ruse to promote gun control.
Some of these legal actions have validity, such as the recent decision by a Wisconsin judge against the author (one of these conspiracy theorists) and publisher of a book for defamation for claiming that one of the parents faked his son’s death certificate. Still, legal actions to shut down or hold as libelous written publications because of misinformation — even if they are by fanatical conspiracy theorists — have serious implications for freedom of the press and speech.
If the courts open the door to defamation and other actions simply because of falsehood and inaccuracy — no matter how outrageous the claims — there is no doubt that it will have the proverbial “chilling effect” on expression. One can easily envision activist ideologically driven organizations in this era of increasing intolerance (especially on the political left) readily running into court against writers or book authors they disagree with, alleging that they are purveying false information about some event.
Even if these organizations would not be likely to ultimately succeed, the concern about having to face the considerable expense and emotional strain of defending against them would deter people from expressing their views.
What We Need
There are doubtless many, many more cases such as these around the country each month. As our culture is in turmoil, so is our law. When commitment to the natural law and solid moral formation of individuals is discarded, expediency is what drives the law.
We desperately need: a renewed commitment to our traditional common law principles (which were based on the natural law); better people, oriented to justice and exhibiting good judgment, in police departments, prosecutorial offices, and the judiciary; and a restoration of a sense of fairness and mutual respect that seems to have almost vanished in this era of unmitigated sociopolitical conflict and division.
That’s certainly a tall order, but maybe we can get some small movement in that direction by just and civic-minded citizens learning about what’s going on and speaking up about it whenever they can.
