Monday 18th November 2019

Home » Featured Today » Currently Reading:

Neither Left Nor Right, But Catholic… American Criminal Justice In Disarray

October 15, 2019 Featured Today No Comments


(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

+ + +

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.

Share Button

2019 The Wanderer Printing Co.

Twitter Feed

On Sunday December 1st I will celebrate the 35th anniversary of my ordination to the holy priesthood at the 11 AM Mass at Church of the Holy Family 315 E 47 Street (between 1st and 2nd Aves), NY, NY. A reception will follow in the church hall. You are cordially invited to attend

ENOUGH. I accept our stewardship of the earth, as a gift of the Lord, the divine artist and source of the gift. But "eco-side" is an insane example of removing the human person, God's greatest gift, from the plan of salvation.

Deacon Greg Kandra on Twitter

“Pope Francis called on the international community to recognize ecocide as a “crime against peace.” via @De...

I encourage you to view this video & to grow in awareness of the threats to the Deposit of Faith, the treasure house of truth in Jesus Christ. Let us all work to Guard the Deposit of Faith........:Guarding the Deposit of Faith via @YouTube

Load More...

Pope compares politicians who persecute gays, Jews to Hitler

Pope Francis denounced the persecution of gay people on Friday and compared public officials who stoke hatred and anti-gay sentiment to Hitler. Francis delivered his remarks at an international conference on criminal law at the Vatican City, Reuters reported. “It is…Continue Reading

7-year-old whose mom tried to ‘transition’ him chooses to attend school as a boy

DALLAS, Texas, November 5, 2019 (LifeSiteNews) – Seven-year-old James Younger, whose mother enrolled him in kindergarten as a “girl,” has finally been able to attend school as a boy for the first time. James’ parents’ fight over whether he should…Continue Reading

Cardinal Dolan on Biden communion denial: ‘I wouldn’t do it’

Washington D.C., Oct 31, 2019 / 04:58 pm (CNA).- Cardinal Timothy Dolan of the Archdiocese of New York has responded to questions about the denial of Holy Communion to former Vice President Joe Biden last Sunday. On an Oct. 31…Continue Reading

Judge blocks Alabama law banning abortions, pro-lifers plan to appeal to Supreme Court

October 29, 2019 (LifeSiteNews) – Alabama’s ban on virtually all abortions will not take effect on November 15 as planned, thanks to a preliminary injunction issued Tuesday by U.S. District Judge Myron Thompson. In May, Alabama Republican Gov. Kay Ivey signed the Alabama…Continue Reading

Biden denied communion at South Carolina church over abortion stance, report says

Democratic front-runner Joe Biden was reportedly denied communion by a priest at a South Carolina Catholic church over the weekend. Biden, a lifelong Catholic, stopped by Saint Anthony Catholic Church in Florence on Sunday, but was denied Holy Communion by Father Robert E. Morey,…Continue Reading

Bishops call out Fr. James Martin for questioning if Bible is right to condemn homosexuality

October 24, 2019 (LifeSiteNews) — Fr. James Martin, S.J. is coming under fire from a U.S. bishop and a cardinal after a tweet appearing to question the Bible’s condemnation of homosexuality. Yesterday afternoon, Fr. Martin posted the following to his…Continue Reading

Pope Francis appoints new head of Vatican security

Vatican City, Oct 15, 2019 / 04:39 am (CNA).- Pope Francis Tuesday appointed the second-in-command of Vatican security to head the City State’s national police force, after the resignation of the former chief Oct. 14. The pope named Oct. 15,…Continue Reading

Ecological ritual performed in Vatican gardens for pope’s tree planting ceremony

Vatican City, Oct 4, 2019 / 10:30 am (CNA).- Pope Francis witnessed an indigenous performance at a tree planting ceremony in the Vatican gardens Friday, during which people held hands and bowed before carved images of pregnant women, one of…Continue Reading

Young man stuns courtroom by forgiving brother’s murderer, urging her to seek Christ

DALLAS, Texas, October 3, 2019 (LifeSiteNews) — In an incredible display of human compassion, a young man whose brother was shot and killed forgave the cop who had been found guilty of his murder. Former Dallas police officer Amber Guyger shot and…Continue Reading

Cardinal Ouellet defends priestly celibacy ahead of Amazon synod

Rome, Italy, Oct 2, 2019 / 11:35 am (CNA).- Cardinal Marc Ouellet, prefect of the Congregation for Bishops, presented a book Wednesday arguing that in the face of challenges, the Church should not grab at quick solutions, but seek to…Continue Reading

President Trump Defends Religious Freedom at UN, Announces Campaign to Protect Churches

President Donald Trump urged nations across the world to protect religious freedom Monday in a speech to the United Nations General Assembly. Trump, the first U.S. president to highlight religious freedom at the UN, said America will set aside $25…Continue Reading

Archbishop Harry Flynn dies at 86

Minneapolis, Minn., Sep 23, 2019 / 03:40 pm (CNA).- Archbishop Harry Flynn, a former leader of the Archdiocese of St. Paul and Minneapolis, has died. Flynn died Sunday in the St. Paul rectory where he had spent his final days…Continue Reading

Untitled 5 Untitled 2

Attention Readers:

  Welcome to our website. Readers who are familiar with The Wanderer know we have been providing Catholic news and orthodox commentary for 150 years in our weekly print edition.

  Our daily version offers only some of what we publish weekly in print. To take advantage of everything The Wanderer publishes, we encourage you to su
bscribe to our flagship weekly print edition, which is mailed every Friday or, if you want to view it in its entirety online, you can subscribe to the E-edition, which is a replica of the print edition.
  Our daily edition includes: a selection of material from recent issues of our print edition, news stories updated daily from renowned news sources, access to archives from The Wanderer from the past 10 years, available at a minimum charge (this will be expanded as time goes on). Also: regularly updated features where we go back in time and highlight various columns and news items covered in The Wanderer over the past 150 years. And: a comments section in which your remarks are encouraged, both good and bad, including suggestions.
  We encourage you to become a daily visitor to our site. If you appreciate our site, tell your friends. As Catholics we must band together to rediscover our faith and share it with the world if we are to effectively counter a society whose moral culture seems to have no boundaries and a government whose rapidly extending reach threatens to extinguish the rights of people of faith to practice their religion (witness the HHS mandate). Now more than ever, vehicles like The Wanderer are needed for clarification and guidance on the issues of the day.

Catholic, conservative, orthodox, and loyal to the Magisterium have been this journal’s hallmarks for five generations. God willing, our message will continue well into this century and beyond.

Joseph Matt
President, The Wanderer Printing Co.

Untitled 1

Interview With Cardinal Burke . . . Discriminating Mercy: Defending Christ And His Church With True Love


  By DON FIER (Editor’s Note: His Eminence Raymond Leo Cardinal Burke, Patron of the Sovereign Military Order of Malta and Founder of the Shrine of Our Lady of Guadalupe in La Crosse, Wis., graciously took time out of his busy schedule to grant The Wanderer a wide-ranging interview during a recent visit to the Shrine. Included among the topics…Continue Reading

Developing Lives Of Peace After The Heart Of Mary

By RAYMOND LEO CARDINAL BURKE (Editor’s Note: His Eminence Raymond Leo Cardinal Burke delivered the address below at the 32nd Annual Church Teaches Forum, “The Message of Fatima: Peace for the World,” Galt House, Louisville, Ky., July 22, 2017. The address is reprinted here with the kind permission of Cardinal Burke. All rights reserved. This is part one of the…Continue Reading


Today . . .

Pope Francis proposes adding ‘ecological sin’ against ‘common home’ to catechism

VATICAN CITY, November 15, 2019 (LifeSiteNews) – Pope Francis said today that he is thinking about adding the “‘ecological sin’ against our common home” to the Catechism of the Catholic Church. “We have to introduce―we are thinking about it―to the Catechism of the Catholic Church the sin against ecology, the ‘ecological sin’ against our common home, because a duty is at stake,” Pope Francis told his hearers. The Argentinian pontiff made the remark in a…Continue Reading

Jury rules against Daleiden, pro-lifers who exposed Planned Parenthood’s sale of baby body parts

SAN FRANCISCO, California, November 15, 2019 (LifeSiteNews) — David Daleiden and the Center for Medical Progress undercover investigators have been found guilty of multiple crimes and must pay millions in damages to Planned Parenthood for the work they did in exposing organ harvesting on aborted babies. The jury of nine men and one woman released its verdict Friday afternoon after deliberating less than two days, even though the landmark civil trial

1 in 3 US bishops at fall meeting vote against calling abortion ‘pre-eminent’ issue

BALTIMORE, Maryland, November 12, 2019 (LifeSiteNews) — American Catholic bishops showed today that the current pontificate has divided them on fighting abortion as a social justice priority, voting 143-69 to keep the issue “pre-eminent.” This morning during the Fall General Assembly of the United States Conference of Catholic Bishops (USCCB), the bishops debated, and voted upon, a letter based on the USCCB’s document on political life, “Forming Consciences for Faithful Citizens.” At issue was the letter’s insistence…Continue Reading

Cardinal Burke: Pope would be leading a schism if he endorsed errors in Amazon Synod working doc

November 11, 2019 (LifeSiteNews) – Cardinal Raymond Burke, one of the Church’s most outspoken defenders of perennial Catholic teaching, suggested that Pope Francis could be leading a “schism” if he were to put his “stamp” of approval on the Amazon Synod’s controversial working document that has been criticized by top-ranking prelates, including Burke, as constituting apostasy, heresy, and “false teaching”. The Cardinal made this comment in a wide-ranging interview with Ross Douthat that was published

">Bishop Strickland . . .


News That Is Not News

By DONALD DeMARCO Back in 1973, when the Roe v. Wade decision was handed down, The New York Times editorialized that the Supreme Court had brought “an end to the emotional and divisive public argument.” In retrospect, this oracular statement appears not only completely wrong-headed, but actually somewhat comical. If anything, the divisiveness of the…Continue Reading

Bernie Leads His Party To Open Borders

By PATRICK J. BUCHANAN Some 100 members of an American Mormon community in northern Mexico, nine of whom — women, children, toddlers — were massacred weeks ago on a lonely stretch of highway, just crossed over into Arizona. Other family members who have lived there for decades will follow. The atrocity was the work of…Continue Reading

U.S. Bishops’ Pro-Life Chair… Supports Dignity For Aborted Children Act

WASHINGTON, D.C. (ZENIT) — Archbishop Joseph Naumann of Kansas City, chairman of the U.S. Conference of Catholic Bishops’ Committee for Pro-Life Activities, sent a letter on October 31, 2019, to members of the U.S. Congress in support of S. 2590 and HR 4934, the Dignity for Aborted Children Act. In the letter, Archbishop Naumann cited the…Continue Reading

Cardinal Pell . . . Objected To Controversial Vatican Hospital Loan

By ED CONDON VATICAN CITY (CNA) — A 50 million euro loan request to secure the purchase of a bankrupt hospital was vetoed by George Pell Cardinal Pell and financial authorities at the Institute for Works of Religion, commonly called the Vatican Bank, before it was approved by the Holy See’s central bank, APSA, where…Continue Reading

Reverence: The Ultimate Form Of “Active Participation” In The Sacred Liturgy

By JAMES MONTI Over the decades since the Second Vatican Council, a lot has been said and debated concerning the concept of “active participation” in the Mass and how this should properly be defined. There has been a growing recognition and consensus that active participation is not about inventing external roles for everyone to play…Continue Reading


Our Catholic Faith (Section B of print edition)

Catholic Replies

Editor’s Note: In a recent weekly bulletin, Fr. George Rutler of the Church of St. Michael in New York City offered these perceptive comments: “ ‘Secularism’ is a religion with a non-creedal creed censuring those who do not believe in unbelief. Young people in the United States who claim to have ‘No Religion’ — called ‘Nones’ — now outnumber Catholics,…Continue Reading

">Guarding The Deposit Of The Faith

Bringing An Era To An End

By FR. ROBERT ALTIER Thirty-Second Sunday In Ordinary Time (YR C) Readings: Mal. 3:19-20a 2 Thess. 3:7-12 Luke 21:5-19 In the Gospel reading today our Lord tells His listeners that the day would come when the Temple would be destroyed and not one stone would be left upon another. When the people asked what the sign would be to let…Continue Reading

A Leaven In The World… Life Is Beautiful With Final Judgment In View

By FR. KEVIN M. CUSICK The prospect of final judgment brings negative impressions, images, or emotions to mind for many. Sometimes it also does so for some who claim our Catholic faith. As a step along the way to spiritual maturity, we must often be purged of our childish or worldly impressions. With an authentic and deeper faith, the prospect…Continue Reading

God’s Plan… Embrace Glorious Chastity

By MOST REV. JOSEPH STRICKLAND (Editor’s Note: As Bishop Strickland has been traveling, he wasn’t able to submit a column for this week’s Wanderer. Instead, we reprint here, with permission, his reflections on chastity from his Bishop’s Blog of February 14, 2019.) + + + In the year 2019, we live in a world that’s off kilter. One of the…Continue Reading

Catholic Heroes… St. Guido Maria Conforti

By CAROLE BRESLIN Many men and women who have established religious orders had to overcome various obstacles to obtain canonical approval. In addition to finding those persons with the same heart to serve God’s people, they must acquire housing, and find funding. These may be worldly concerns, but they are still important. Founders must also consider the statutes for their…Continue Reading

Catholic Heroes… St. Joseph Pignatelli

By CAROLE BRESLIN Since the founding of the Society of Jesus in 1540 by St. Ignatius of Loyola up to the mid-eighteenth century, the order of priests and brothers had met with phenomenal success. But despite the high respect the Jesuits received from Popes, bishops, and kings, they eventually found themselves exiled and suppressed. The same bishop who started the…Continue Reading