WASHINGTON, April 11, 2015 — Most Americans are unhappy with Washington. According to Rasmussen polling, 56 percent of Americans consider Congress’s job performance “poor,” while Gallup finds that 49 percent disapprove of President Obama’s performance.
Congress and the president have passed and signed some extremely important laws that are difficult for voters and even policy makers to understand. Like Obamacare, these laws have to be passed before lawmakers and voters can really know what’s in them.
With vast amounts of regulation produced from complex and unreadable law, it is no surprise that Americans are unhappy and confused and often feel abused by Washington.
Our abuse at the hands of Washington often seems arbitrary. This sense of arbitrariness comes not just from regulatory abuse, but from federal criminal law. Everything from the abuse of RICO (the Racketeering Influenced and Corrupt Organizations Act) to asset forfeiture laws to laws governing the import of orchids has been used to imprison or ruin Americans guilty of no real crime, but only of running afoul of obscure provisions of the law and a prosecutor out to improve his conviction rate.
The National Center for Policy Analysis has noted two organizations that are working together to persuade Congress to stop writing criminal laws in ways that leave innocent people vulnerable to unjust prosecution. One is the Heritage Foundation, which is one of the nation’s most well known conservative think tanks.
The other is the National Association of Criminal Defense Lawyers. Together they prove the adage that “politics makes strange bedfellows” is true, since the latter organization is better known for its affiliation with progressive groups and causes.
According to a report, the two organizations produced examples of:
- Over 20 federal laws that went into effect in 2005 and 2006 to combat nonviolent crime lacked an adequate provision that one accused of breaking the laws must have had a “guilty mind” or criminal intent. Good law has always required such provisions. It is imperative that the government prove “both a guilty act and a guilty mind.” Without that, bad judgment and even mistakes could become criminal.
- On that rare occasion when the Congress makes a new law that includes a provision for a “guilty mind,” it is “often so weak that it does not protect defendants from punishment for making honest mistakes or committing minor transgressions.”
For centuries, the legal code of most Western countries had required “criminal intent” as a part of all laws designed to fight crime.
This was intended to make sure laws were created to protect the public good and not be used for political agendas, such as punishing political enemies.
The more conservative wing of the Supreme Court is beginning to question the legality of many of these laws and has expressed concern on how they can be used. Justice Antonin Scalia sees these type of laws as a great tool for “headline-grabbing prosecutors” who want to shut down behavior that is unpopular and perhaps even unethical, but not necessarily criminal. These type of laws make populations fearful, prosecutors powerful and people less free.
Scalia has noted that the law is so vague that it could be used against a mayor for using his political influence to get a better table at a restaurant or against a salaried employee who calls in sick but goes to a beach. These, of course, are the kind of laws that are selectively applied and are begging to be abused.
It is interesting that, after centuries of writing laws that protect the rights of individuals and require proof of intent, the Congress has forgotten this simple, but important, practice.
Furthermore, the president has been willing to sign such dangerous bills into law. It is time for the Congress and the president to develop specific tests to make sure these laws comply with the letter and the spirit of the Constitution.