By STEPHEN M. KRASON
(Editor’s Note: Stephen M. Krason’s Neither Left nor Right, but Catholic column appears monthly [sometimes bi-monthly]. 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. This column originally appeared in Crisismagazine.com.)
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We hear a great deal nowadays about criminal justice reform, but it may not be addressing the most serious problems of American criminal law. We hear about such things as police brutality, how the criminal justice system is racially biased, excessive sentences for drug offenses, and problems of mass incarceration.
The validity of these claims certainly are debatable. Even if they are valid, other more sweeping, sociocultural problems are likely to be responsible for certain of them (e.g., the disproportionate percentage of blacks in prison — which some say demonstrates racial bias — may just reflect the disproportionate amount of crime committed by that demographic, which in turn is the result especially of the breakdown of the black family that has been talked about for fifty years).
However, there are more basic problems that necessitate a searching reconsideration about the directions that American criminal law and its enforcement have gone in.
What are these problems? One is, simply, over-criminalization and even a stretching of the law to treat things as against the law that clearly are not. A current, much publicized example is one I wrote about in a previous column: the prosecutions of parents, especially prominent ones, in the college admissions scandal. Even though the behavior in question in these cases — paying a fixer to get their children into prestige universities by dishonest and underhanded methods — is nowhere forbidden or addressed in federal law, that didn’t deter federal prosecutors. They have used the “all-purpose” federal statutes concerning fraud and conspiracy to go after the parents.
These prosecutions, quite the contrary of the alleged bias of the criminal justice system against the poor and racial and ethnic minorities, conceivably were influenced by a bias against the wealthy and prominent — or at least sought to make the point, by stretching the law, that they simply have to be held accountable. To be sure, these prominent parents acted dishonestly, manipulatively, and outrageously, but that doesn’t mean they acted illegally.
Apart from stretching the law, there is a tendency by legislatures and bureaucratic agencies — on both the federal and state levels — to use statutory and regulatory law to reach an ever-increasing number of behaviors. Different writers have commented about how in recent times matters that were historically in the realm of civil law are increasingly being brought into the realm of criminal law and even how things in the realm of manners have been turned into — at least — low-level crimes.
Related to this is the increasing imperviousness of legislators and bureaucrats to spelling out precisely what the behavior is that they are criminalizing. Vagueness of laws has become an increasingly sweeping scourge and source of injustice in contemporary America. As one prominent legal commentator put it, the average American commits three federal felonies a day and doesn’t even know it.
One criterion about whether a law is just, according to sound ethics, is whether it spells out clearly what behavior it is proscribing. Vague laws by their nature fail to measure up to this. Further, when people don’t even know that a law exists, another ethical requirement for a law to be considered just is not met: It has to be properly promulgated to those who are subject to it. In an era when there is a veritable explosion of statutory and, even more, regulatory law this problem abounds.
Vague laws and the ease of prosecutors twisting laws to make criminal charges possible even when people didn’t think they were doing anything illegal suggests another troubling trend in criminal law: a movement away from the traditional requirement of intent or what is called mens rea. So, we find people being arrested and prosecuted for actions that they indeed thought were entirely legal, or even for accidental mishaps or absent-minded or forgetful actions that were in no way intended.
We see this with parents who forget that their babies or small children are in car seats in the back seats of their cars — even though state laws have encouraged such situations by requiring young children to be put in rear-facing car seats in the back seat where they can’t even be seen in the rearview mirror. So, a parent has a momentary lapse of memory, forgetting about a sleeping child, and runs into a store for five minutes — to come back out and be handcuffed and carried off to jail. Such cases are frequent enough, if we judge by news reports.
I remember when this was the fate of a good, loving mother several years ago in the city where my university is located.
Some anonymous person, who could have very easily stayed outside the car to watch the child while having the mother paged inside the supermarket where she went, instead reflexively called the police who just as reflexively whisked her off to jail and made sure child protective services was immediately contacted.
That brings to mind another problem with current criminal justice. Police are too ready to arrest. One wonders if this is both a result of inadequate training of officers — not sufficiently stressing their role as problem-solvers and conflict-resolvers — and a prevailing belief that the heavy hand of the law through formal processes is the preferred way to respond to a whole array of situations. Maybe it’s time to think about returning to the nineteenth-century notion of the police officer as partly a social worker — at least to the degree that that’s possible in a society that has become more violent and morally unhinged.
This almost reflexive, unreflective tendency to arrest perhaps reached its ultimate a short time ago in Florida when a school resource officer arrested a six-year-old girl after she threw a temper tantrum — possibly caused by a health problem — at her school. She was taken out in handcuffs to a juvenile detention center, mugshot, and fingerprinted. If she doesn’t show up for a court appearance, a warrant will be issued for her to be arrested again.
Prescinding from this is the problem that, as mentioned, is getting a lot of attention from those calling for reform: excessive incarceration. In recent years, the U.S. has had the highest incarceration rate in the world. There are probably multiple causes for this, including a tendency to prescribe longer sentences for a range of crimes and the drug problem. Interestingly, the last two decades have seen a disproportionate increase in women being incarcerated compared to men.
At the most basic level, one wonders if American criminal justice has come to almost reflexively seek jail time as punishment. So, we see that in the college admissions scandal the judge, it seems, just had to sentence actress Felicity Huffman to prison, even if it was just for two weeks.
Cases like this make one ask if incarceration is excessively motivated by a concern about playing to the grandstands, if you will: The public thinks that the offender, especially in a highly publicized case, should “pay the piper.” This, however, should never be the prime reason — or in some cases, maybe not the reason at all — for the decisions of courts. It should be the securing of justice. This also gets to the question of whether incarceration shouldn’t primarily be aiming to keep dangerous people, not foolish actresses, off the streets.
Regarding incarceration — and this also takes us back in a certain way to the question of intent — it has been commented that American prisons are full of people with mental illness. Is there some other way of dealing with offenders whose crimes, even if they don’t rise to the statutory standard of insanity, may have something to do with their mental instability?
Sting Operations
If one is to speak of police misconduct, he must also speak — and, in fact, it is probably a more serious problem — of what has been suggested: prosecutorial misconduct.
Whether it be stretching the law to go after people, using plea-bargaining — which has become the norm in criminal cases — as a pressure tactic to get convictions so prosecutors effectively don’t have to go to the trouble to prove their cases, making deals with prison inmates to get them to falsely finger people as the culprits in open cases, violating defendants’ attorney-client privilege, refusing to disclose exculpatory evidence, engineering with law enforcement agencies questionable sting operations and entrapment schemes that actually set up crimes — and the list could go on and on — prosecutorial misconduct has long since been at a crisis level in the U.S.
It is especially acute at the federal level. What we see too often nowadays are prosecutors who seem oblivious to the American Bar Association’s Model Code of Professional Responsibility, which says that they should be concerned about seeking justice, not merely convictions. Indeed, it is often alleged that for some, ambition drives their actions since a successful prosecutorial career is a ready stepping stone to higher political office.
American criminal justice is, in many respects, in disarray and what has been said here seem to me to be the major reasons, and they are of a fundamental character. Any reform efforts that fail to address them are likely to be of limited value.
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