Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

Beyond Guilt and Innocence?

Spring 2001

The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice by Paul Craig Roberts and Lawrence M. Stratton (Prima Publishing, 2000; xiii + 242 pgs.)

Years ago, Paul Samuelson raised an influential objection to Friedrich Hayek's The Road to Serfdom. Hayek argued that collectivist movements displayed a disturbing feature. Progressives and "advanced thinkers" of all stripes, in their zeal to remold society, found the fact that people were unwilling to conform to their schemes of no importance. Leftists took themselves to be an elite class who would guide the rest of us to what we "really" wanted. Civil liberties mattered little. Hayek quoted with misgiving the title of a book by the historian Carl Becker that celebrated the new trend: New Liberties for Old. But according to Samuelson, Hayek had raised a false alarm.

Is it not the case, Samuelson asked, that in the United States we have both a free society and a welfare state of just the sort that worried Hayek? Whether civil liberties and the market can coexist peacefully is an empirical matter; our own society gives Hayek's argument the lie. Messrs. Roberts and Stratton show convincingly that Samuelson spoke too soon. For people whom the government has in its sights, the United States has ceased to be a free society.

One might at first be inclined to dismiss this charge as exaggerated, but our authors devise a thought experiment that quickly induces a second look at their startling thesis. They describe in some detail the trial and subsequent execution of Nikolai Bukharin in 1938. Bukharin, once the "golden boy" of the Soviet Communist Party, stood accused of plotting with foreign powers to destroy the Russian Revolution. Of course, the charges were mere figments of Stalin's frenetic imagination, but this did not save the hapless Bukharin.

Quite the contrary, the trial proceeded to its foreordained conclusion. If evidence against Bukharin did not exist, no matter; "torture and [the threat of] family annihilation" (p. 27) hung over each prisoner and would secure the desired end. A sad tale, no doubt; but what has it got to do with us? Surely American prosecutors do not regularly employ torture to obtain their convictions. Not for them the three rules for securing a confession often attributed to Stalin: "beat, beat, and beat again!"

Roberts and Stratton dissent. Their point in describing the Bukharin episode is to focus an unaccustomed beam of light on American criminal justice. True, American defendants rarely suffer physical abuse, but psychological torture pervades our supposedly free system. Our authors here have in mind plea-bargaining. "In the United States today, plea bargaining has displaced trial by jury as the dominant method of criminal dispute resolution . . . 90 to 95 percent of all federal, state, and local criminal cases are settled by plea bargains" (p. 85).

But what has this to do with torture? "Defendants who insist on exercising their constitutional right to a jury trial risk a substantially increased sentence if they are convicted, and this sentencing differential alone is enough to make plea bargaining coercive" (pp. 85-86). According to common law, a defendant must be proved guilty; but plea-bargaining enables the State to avoid its burden. Have we not come very close to the forced confessions that shock us in the Russian case?

Our authors denounce on similar grounds inducing one defendant to testify against others in return for lenient treatment. Blackstone condemned this practice in the eighteenth century, noting that such induced confessions cannot be trusted; but prosecutors, anxious at all costs for a high conviction rate, have no use for long-established historical rights.

But have we a choice? Supporters of the current system will claim that full trials for everyone accused cost too much. Would not the vast increase in costs were plea-bargaining abolished impose a draconian tax burden? Here I think our authors' case needs expansion. Their distaste for confessions should be linked to a rigorous pruning of the legal system. If, for example, drug offenses were purged from the criminal roster, would not the number of required trials drastically lessen?

You may now deploy another objection. Will an innocent defendant so readily plead guilty? Will he not trust that the safeguards against false convictions will insure for him an acquittal? Unfortunately, these safeguards have to a large extent gone by the board. People may be tried for hitherto unheard of "crimes"; and in their efforts to defend themselves, they face unprecedented obstacles.

A prime requirement for conviction under common law is mens rea you must intend to commit a criminal act in order to be found guilty. No longer does this restriction apply, as the Exxon Corporation discovered to its cost after the Exxon Valdez oil spill. "The government's `innovative legal approach' was to criminalize the accident. It is absolutely certain that America's largest oil company did not run the Valdez aground with the criminal intention of polluting the water and killing migratory birds. Yet, the Justice Department's criminal indictment assumed that Exxon did" (p. 48).

The assault on mens rea forms but one salient in the full-scale invasion of legal liberties. Not only may you be found guilty without showing criminal intent: you may also be convicted for activity that was not criminal when you did it. Once more, violations of a fundamental legal principle often proceed under cover of protecting the environment. The notorious Superfund Act "meant total, rather than proportionate, retroactive liability for parties who were in any way connected with the waste dumps prior to the passage of Superfund, regardless of the legality of their actions at the time they occurred" (p. 74). 

As if this were not enough, the modern prosecutor has means to disrupt the trial as well. Attorneys who defend too vigorously the "wrong" clients may find themselves charged with criminal conspiracy. Both attorney and client face asset forfeiture before trial, making resistance to prosecution next to impossible. Small wonder that many succumb to the offer of a plea bargain that obviates any need for the prosecutor to prove charges. Should any defendant be brave enough to resist, prosecutors may subject him to a barrage of unfavorable publicity. Such a trial by the press helped bring down Clark Clifford, one of the highest and mightiest of the elite. Just as members of the Politburo often found themselves victims of the Red Terror, so no one in America is safe.

I have so far barely mentioned the most dangerous threat to our liberties. Let us suppose that, through skill or luck, a defendant is found not guilty. The government can still confiscate his assets. Even "those who are acquitted cannot recover their property without proving that there was no `probable cause' for the seizure of their property" (p. 128). And what if you have never been charged with a crime at all? You are by no means safe. If government agents suspect a crime has taken place on your property, it is forfeit, even though you knew nothing at all about the alleged crime.

How has the virtual destruction of our legal system come about? Our authors place much of the blame on a surprising source: the utilitarian philosophy of Jeremy Bentham. A precocious student, Bentham attended at a young age the lectures of Sir William Blackstone and found them not at all to his liking.

The great English jurist stressed fixed rules of procedure that had been developed over the course of centuries of British law. Fundamental to Blackstone's analysis lay a basic premise: people need protection from the government. Rights draw a privileged sanctuary around the individual, guaranteeing him against arbitrary power. As Blackstone saw matters, the law reflected no comprehensive scheme that a single mind had devised. Rather, "freedom slowly broadened down, from precedent to precedent," as Tennyson later put it.

Our authors not only accept Blackstone's account but also look with sympathy on a view of legal history brought to perfection in the nineteenth century by William Stubbs and Edward Augustus Freeman. According to them, British liberty was a Saxon inheritance that could be traced ultimately to German tribesmen. Saxon restrictions on royal power suffered a near fatal blow from the Norman invasion in 1066, and the precedents cited by Blackstone resulted from a long struggle to regain that inheritance.

The view of legal evolution sketched here is much more controversial than our authors allow; but fortunately their account of British legal liberty does not depend on its truth. Suffice it to say that the notion of a lost Saxon tradition of freedom exerted a decisive effect on resistance to arbitrary power in the seventeenth century, as J.G.A. Pocock has shown in his classic work, The Ancient Constitution and the Feudal Law.

To Blackstone's entire conception, Bentham interposed an objection. Does not the entire view exemplify blind rule-worship? The purpose of law, after all, is to ferret out lawbreakers and, by punishing them, to deter others from following their path. If so, legal rules must be judged by their efficiency in securing that end. If torture, when carefully applied, enables the magistrate to secure information at less cost than alternatives, why forbid it? Again, why limit imprisonment to those who have already committed crimes? Should not those likely to offend be subject to sanction? The mere fact that they have so far done nothing wrong imposes no insuperable bar to action.

Roberts and Stratton rightly see in Bentham a malign influence on criminal law, but I regret that they do not consider a vital point. Is Bentham's low regard for civil liberties an implication of utilitarian ethics? That is to say, if one has the aim of maximizing the general happiness, will one of necessity throw out Blackstone and put in Bentham? Some utilitarians argue that civil liberties are mandated by their ethical system: Bentham mistook the implications of his own doctrine.

I would have welcomed an evaluation of this contention by our acute authors, as well as their opinions on a few other topics. How would they respond, e.g., to Richard Epstein's contention that in some instances strict liability should replace mens rea? But I must not cavil; Roberts and Stratton have given us a work of vital importance.

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