The Death of Due Process
By Peter Brimelow, Forbes
Magazine, 12.11.00
"THE LEFT IS RIGHT: AMERICA
IS AN UNJUST SOCIETY." Startling words to come
from Paul Craig Roberts, 61, an architect (as
assistant secretary of the Treasury) of the Reagan
tax-cut revolution and now a syndicated columnist and
chairman of the Institute for Political Economy. But
he's not talking about discrimination or the unequal
distribution of wealth. The problem, he says, is this:
"Americans are no longer secure in law - the
justice system no longer seeks truth and prosecutors
are untroubled by wrongful convictions."
Dressed
to defend justice, Paul Craig Roberts says
willy-nilly prosecutions are making the country
unsafe.
Recently, with coauthor
Lawrence M. Stratton, a lawyer, Roberts published The
Tyranny of Good Intentions: How Prosecutors and
Bureaucrats Are Trampling the Constitution in the Name
of Justice (Forum, $25). In it he blames the Reagan
and Bush administrations' wars on crime and drugs for
institutionalizing many of the problems he sees
developing. In particular he blames the
near-sextupling of assistant U.S. attorneys in the
early 1980s for a fatal dilution in prosecutorial
standards. The prosecutions are not making the country
safer for the law-abiding. They are making it more
dangerous.
Historically, Roberts argues,
Americans enjoyed the protection of what were termed
"the Rights of Englishmen" by 18th-century
jurist Sir William Blackstone, whose Commentaries on
the Laws of England was a bestseller in the 13
colonies. The broadest of these was the right to due
process. That meant punishment by dint of laws and
evidence rather than, as has been the case in much of
human history and is still the case in much of the
world, by dint of a dictator's fiat. A related notion
is that there should be no bills of attainder,
legislation designed to criminalize a specific
individual.
Other rights: to have the
confidential assistance of an attorney; to confront
adverse witnesses; to be protected from
self-incrimination; to demand that the prosecution
prove not just an evil deed but an evil intention
(called mens rea); and to be protected from
retroactive laws. Another English concept was that the
government should not go after people by making
arbitrary attacks on their property.
Most of these protections
were enshrined in our Bill of Rights. And yet most
have been subtly but steadily eroded in the U.S.,
Roberts maintains. "They can seize anyone, and
any property, at any time," he says of today's
law enforcement agencies. For example, civil cases are
now often criminalized, through "novel
theories" of the law invented by prosecutors to
target specific defendants - very much like a bill of
attainder. Plea bargains, traditionally frowned on by
English courts because of possible coercion, now
conclude 90% to 95% of federal criminal cases,
increasing the prosecutors' incentive to pile on
indictments - in effect, torturing the defendant - and, in
the absence of a court test, reducing the incentive
for careful, or even honest, police work. You get an
idea of what is going on when you see a newspaper
story about a crime (often a white-collar crime) in
which there is a detail like this: "If convicted
on all counts, so-and-so would be subject to a
sentence of 120 years." It seems that every
misdeed becomes, in the statute books, a panoply of
offenses like money laundering and racketeering. By
throwing a large statute book at a defendant, the
prosecutor can blackmail the culprit (or an innocent
person) into a plea bargain.
In the old days punishments
were harsh, but they were not arbitrary. You could be
hanged for stealing a sheep, but you would not also be
charged with conspiracy to commit sheep stealing,
willful evasion of taxes on stolen sheep and
diminishing the civil rights of the sheep owner.
Attacks on property? Asset forfeiture, aimed at drug
dealers when radically extended by Congress in 1984
but now covering 140 other offenses, allows seizure on
"probable cause" - i.e., at the discretion of
police and prosecutors. Proceeds go to the seizing
agency, creating a corrupting motive.
This erosion of Americans'
historic protections has already caused some public
scandal. The spectacle of innocents losing homes,
boats and other property because tenants, customers
and even passersby were using drugs caused House
Judiciary Chairman Henry Hyde to introduce legislation
this year attempting to rein in forfeiture. Roberts
himself got interested when he began writing columns
about the Wenatchee, Wash. child sex-abuse case, one
of several curious Salem-witch-trial episodes in which
numbers of adults have been convicted on the word of
children seized and coaxed by investigators into
testifying to imagined events.
But much of the erosion of
historic protections is in the area of white-collar
crime-involving hitherto respectable, if less than
universally loved, corporations and businesspeople.
Roberts here cites, see FORBES
(Dec. 1, 1997) in calling attention to the extreme
punishments meted out to people involved in
essentially civil disputes with the government. What
we have at work is an unholy alliance between
business-hating liberals and crime-hating social
conservatives. Roberts says that the Clinton
Administration Justice Department has even introduced
a sort of affirmative action to law enforcement,
demanding quotas of white-collar prosecutions.
The results, as laid out by
Roberts, are certainly disturbing. Savings and loan
financier Charles H. Keating Jr. was convicted of the
crime of employing fraudulent bond salesmen, even
though there was no evidence he knew of their
activities, and the crime was not on the books when he
supposedly committed it. His conviction was overturned
on constitutional grounds after he served 4 1/2 years
in jail. Washington lawyer Clark Clifford, then in his
80s, was indicted by the federal government in New
York for allegedly accepting bribes in his role as
chairman of First American Bankshares. His personal
assets were frozen and his credit card was rejected
when he tried to pay the chauffeur who drove him to
the airport on his way back to Washington, D.C. The
case against Clifford was dropped when his partner was
acquitted. Exxon Corp. faced cleanup costs and civil
tort damages after the Exxon Valdez oil spill, but it
was also indicted for intentionally killing migratory
birds without a hunting license and dumping refuse
without a permit. This "novel theory"
allowed the Bush Administration Justice Department to
bring criminal charges, which carry massively higher
penalties. "Despite the absurdity of the
charges," notes Roberts, "Exxon lacked the
confidence in our crumbling justice system to go to
trial." It settled for a $125 million fine.
The conservative
establishment has greeted Robert's apostasy with a
stricken silence. His book has not yet been reviewed
in the Wall Street Journal or National Review
magazine, despite his long connection with both.
Still, conservatives in the
field do concede that Roberts has a point, while
disputing other aspects of his analysis. "This is
something that must eventually surface as an issue
with conservatives," says Walter Olson, editor of
Overlawyered.com, a legal-reform Web site. "He's
right that criminal law, in certain narrow areas, has
been made a vehicle for extortion," says Edwin R.
Jagels, a famously aggressive district attorney in
Kern County, Calif. But Jagels rejects the idea of
widespread prosecutorial misconduct and sees no
alternative to plea bargains, given crowded dockets.
Justice Stephen J. Markman of the Michigan Supreme
Court similarly concurs, but adds: "The ultimate
responsibility lies with Congress and its penchant for
overly broad criminal statutes."
Roberts, recently moved from
D.C. to the Florida panhandle, is unyielding.
"They may have dented crime," he says of his
former allies, "but they've dented justice,
too." With sweeping criminal laws the prosecutor
can find some technical charge to hang on just about
anybody.
Paul
Craig Roberts is the author with Lawrence M. Stratton of
The Tyranny of Good Intentions : How Prosecutors and
Bureaucrats Are Trampling the Constitution in the Name
of Justice.
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