Saturday 6th June 2020

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

Texas Pro-Lifers Sue to Stop Austin From Paying for Abortions With Their Tax Dollars

Bishop Strickland . . . We Must Defend The Embryonic Human Person -

Load More...

US bishop reverses plan to ban Communion on tongue as churches reopen

LAFAYETTE, Louisiana, May 15, 2020 (LifeSiteNews) – Bishop Douglas Deshotel has revised his decision to allow only reception of the Eucharist in the hand amid the coronavirus pandemic. He credited guidelines issued by the Thomistic Institute for correcting his previous…Continue Reading

Sainthood causes open for St John Paul II’s parents

A ceremony launching the causes of the Wojtyłas took place at the Basilica of the Presentation of the Blessed Virgin Mary in Wadowice, John Paul II’s birthplace. At the ceremony, the Kraków Archdiocese officially formed the tribunals that will seek…Continue Reading

President Trump on National Day of Prayer: “Never Forget That All Things are Possible With God”

On this National Day of Prayer, Americans reaffirm that prayer guides and strengthens our Nation, and we express, with humility and gratitude, our “firm reliance on the protection of divine Providence.”  As one Nation under God, we share a legacy…Continue Reading

Coronavirus In Minnesota: Archbishop Hebda Gives Guidelines For Reopening Catholic Churches

MINNEAPOLIS (WCCO) — Archbishop Bernard Hebda, head of the Archdiocese of St. Paul and Minneapolis, says he anticipates reopening churches on May 18, which is when the state’s current stay-at-home order expires. In a letter to Catholics, he outlined strict guidelines…Continue Reading

Joe Biden Calls Killing Babies in Abortions “Essential Health Care That Cannot be Delayed”

Today, presumed Democratic presidential nominee and former Vice President Joe Biden stated that abortions are “essential health care that cannot be delayed” during the COVID-19 pandemic. Biden’s statement was in response to a question during a virtual town hall in which pro-abortion…Continue Reading

Archbishop Viganò: Third Secret of Fatima has not yet been fully published

April 22, 2020 (LifeSiteNews) – In a stunning new interview, Archbishop Carlo Maria Viganò, the former papal nuncio in Washington, D.C. and the prelate who accused Pope Francis of covering up the crimes of Theodore McCarrick, has now publicly stated…Continue Reading

George Pell: In the suffering, we find redemption

Every person suffers. None escapes all the time. Everyone is confronted with a couple of questions. What should I do in this situation? Why is there so much evil and suffering? And why did this happen to me? Why the…Continue Reading

Covid-19: First Catholic bishop dies of coronavirus

Ethiopia’s Apostolic Vicar, Bishop Angelo Moreschi, has died. He is the first Catholic Bishop to succumb to the coronavirus pandemic. By Fr. Benedict Mayaki, SJ Italian missionary and Apostolic Vicar to Ethiopia’s Gambella Vicariate, Bishop Angelo Moreschi, SDB, died on…Continue Reading

Catholic church offers curbside confessions during coronavirus outbreak

STILLWATER, Minn. — Drive-thrus, curbside pick-up, contactless methods. We’re becoming best buds with terms like these as we try our best to stay home, and flatten the curve of the coronavirus outbreak. However, today, we’re not talking about food or…Continue Reading

All priests, half of seminarians at traditional Catholic order infected by coronavirus

OPFENBACH, Germany, March 20, 2020 (LifeSiteNews) – Almost all priests and roughly half of the seminarians currently at a German seminary of the Priestly Fraternity of St. Peter (FSSP), a traditionalist community of priests and seminarians, have been infected by…Continue Reading

Catholic Herald US to shut down offices

The Catholic Herald’s U.S. edition is shutting down its offices in Washington, D.C., after less than two years of publication, people familiar with the matter told the Washington Examiner. The magazine, which claims to be “America’s only national Catholic weekly…Continue Reading

Middle school hangs LGBT flag in cafeteria, bans flag of traditional family

MINNEAPOLIS, Minnesota, March 6, 2020 (LifeSiteNews) – A small town Minnesota school has become a center of controversy because of a LGBT pride flag hanging in its cafeteria. Following several weeks of parental and community concern, packed school board meetings, and…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 . . .

Madison diocese says it will sue over religious restrictions

Washington, D.C. Newsroom, Jun 3, 2020 / 02:10 pm MT (CNA).- Attorneys representing the Diocese of Madison sent a letter to Dane County and City of Madison officials on Wednesday, June 3, notifying officials they will file suit if parishes in the diocese are not permitted to operate at the same capacity as retail outlets. Under Dane County’s reopening guidelines, retail businesses are permitted to operate at 25% capacity. Places of worship, however, are limited…Continue Reading

DC archbishop criticizes long-planned Trump visit to Catholic shrine as ‘reprehensible’

WASHINGTON, D.C., JUNE 2, 2020 (LifeSiteNews) – Washington, D.C.’s Archbishop Wilton Gregory  issued a stinging rebuke to the John Paul II National Shrine for “allowing” President Trump and First Lady Melania Trump to visit today. The president and Mrs. Trump visited the shrine to both commemorate Pope Saint John Paul II’s 100th birthday two weeks ago and the 41st anniversary of the modern day saint’s historic Mass at Victory Square in Warsaw. Melania Trump is the first Catholic…Continue Reading

Trump cuts ties with World Health Organization, depriving it of $450M annually

May 29, 2020 (LifeSiteNews) – President Donald Trump announced today that the US will cut ties with the World Health Organization (WHO) which has been under heavy criticism for the way it handled the coronavirus as well as for it being strongly influenced by China.

Supreme Court rejects challenge to limits on church services; Roberts sides with liberals

WASHINGTON — A divided Supreme Court on Friday rejected an emergency appeal by a California church that challenged state limits on attendance at worship services that have been imposed to contain the spread of the coronavirus. Over the dissent of the four more conservative justices, Chief Justice John Roberts joined the court’s four liberals in turning away a request from the South Bay United Pentecostal Church in Chula Vista, California, in the San Diego area.

Twitter censors Trump hours after he signs executive order combatting social media censorship

UNITED STATES, May 29, 2020  (LifeSiteNews) — Twitter has censored a new post by President Donald Trump within 24 hours of him signing an executive order to combat social media censorship. The social media giant covered a tweet published by Trump earlier today with the words: “This Tweet violated the Twitter Rules about glorifying violence. However, Twitter has determined that it may be in the public’s interest for the Tweet to remain accessible.”


Maryland County Lifts Ban On Communion

By CHRISTINE ROUSSELLE WASHINGTON, D.C. (CNA) — Howard County, Maryland, has reversed a policy that banned consumption of any food or drink during religious services, effectively preventing the licit celebration of Mass. A county spokesman told Catholic News Agency May 28 that the prohibition will be removed, and faith leaders will be consulted on future…Continue Reading

A Book Review… A Prompt To A More Serious Life Of Prayer

By DONAL ANTHONY FOLEY In Silence With God by Benedict Baur (Scepter Publishers, 250 pages, paperback). In Silence With God by Fr. Benedict Baur was originally published in the 1950s, when Fr. Baur was the archabbot of Beuron abbey in Germany, and begins with him asking the question, “What is the true purpose of our…Continue Reading

Biden To American Families… Don’t Earn More Than $125,000 Per Year

By TERENCE P. JEFFREY (Editor’s Note: Terence P. Jeffrey is the editor-in-chief of Creators Syndicate distributes his column.) + + + They work hard, but they are not rich. He is a local police officer in a suburb of a Midwestern city. His annual salary is $67,620 — exactly the national average for his…Continue Reading

UK Bishop Laments… “Sinister” Promotion Of At-Home Medical Abortions Amid Pandemic

  (CNA) — An English bishop has criticized the government for promoting at-home medical abortions during the coronavirus lockdown. Speaking at a Mass for workers on the pandemic’s front line May 21, Bishop Mark Davies suggested the country would have to face “searching questions” in the wake of the crisis. He said: “In the days…Continue Reading

Does Life Have Any Meaning?

By DONALD DeMARCO W. Somerset Maugham was among the most popular writers of his era and reputedly the highest-paid author during the 1930-40s. His most popular novel, The Razor’s Edge (1944), which was made into a most successful movie two years later, is about the search for meaning. It takes as its theme the Zen…Continue Reading


Our Catholic Faith (Section B of print edition)

Catholic Replies

  Editor’s Note: We are in the process of reducing our supply of books and are offering them to interested readers at a substantial discount. The books available, all in mint condition, are Catholic Replies and Catholic Replies 2 (both $17.95), All Generations Will Call Me Blessed and Who Do You Say That I Am? (both $10.95), and Catholicism &…Continue Reading

A Leaven In The World… Coronavirus Cult Vs. Christianity?

By FR. KEVIN M. CUSICK Christ offers the fact of salvation through the Catholic faith. This is a reality which guides us through the vicissitudes of history. Changing circumstances through time and varying place by place since the Lord’s Passion, death, and Resurrection have included the eruptions of false cults and syncretist transmogrifications of the true faith, challenging Christians to…Continue Reading

Rich In Kindness And Fidelity

By FR. ROBERT ALTIER Solemnity Of The Most Holy Trinity (YR A) Readings: Exodus 34:4b-6, 8-9 2 Cor. 13:11-13 John 3:16-18 We used to hear about a distinction made between the God of the Old Testament and the God of the New Testament. The God of the Old Testament was said to be vindictive while the God of the New…Continue Reading

Bishop Strickland . . . We Must Defend The Embryonic Human Person


By MOST REV. JOSEPH STRICKLAND I was once a baby. If someone had killed that baby, he would have killed me. I would not be writing this. In fact, I was once an embryo and then a child in the womb and had someone killed me at that stage of my life, he would have killed me. That’s the point…Continue Reading

Catholic Replies

Q. You recently wrote about Reiki as something not in accord with Church teachings. What about yoga? — L.S., via email. A. In his book Catholics and the New Age, Fr. Mitch Pacwa said that the word “yoga” is Sanskrit for “yoke” or “union” and, in Hinduism, it describes “the general category of various kinds of disciplines meant to unite…Continue Reading

Catholic Heroes… St. Margaret Of Scotland

By DEB PIROCH Great rulers there have been many, but pious royals who fed the hungry, sheltered orphans, built churches and abbeys instead of empires — those are few. St. Margaret of Scotland did, however, and her confessor and chief biographer, Turgot, later bishop of St. Andrews, named her the “Pearl of Scotland.” She was born in Hungary but came…Continue Reading

Catholic Heroes . . . Blessed Titus Zeman

By DEB PIROCH “Even if I lost my life, I would not consider it wasted, knowing that at least one of those that I helped has become a priest in my place” — Slovak priest, Blessed Titus Zeman. + + + Czech Communists attempted to eliminate the Catholic Church in Czechoslovakia, beginning in 1945, Prime Minister Klement Gottwald working hand-in-hand…Continue Reading