Saturday, 29 November 2008

In Passing

Too many “felonies”

“ common law when the British and American legal systems divorced in 1776, felonies were crimes for which the punishment was either death or forfeiture of property. - Wikipedia entry

In an article on the front page of this weekend’s Wall Street Journal, Amir Efrati examines five of George W. Bush’s Presidential pardons: Seeking a Presidential Pardon? Try Praising the Right to Bear Arms.  As should be obvious from the headline, Efrati’s “hook” is that the felons involved had requested pardons specifically for the purpose of having their right to own firearms restored.  It’s an intriguing angle (although Efrati fails to justify the headline’s conclusion[1]), but more interesting to me is the apparent pettiness of the “offences”– the scare quotes are intentional– involved:
...poisoning bald eagles[2]...
...conspiracy to distribute marijuana...
...lying to the government in order to receive unemployment checks.
...illegal storage of hazardous waste
...having knowledge of a felony fraud and not reporting it
These are hardly death-penalty material, especially in a society that agonizes over whether to execute teenaged gangbangers who commit premeditated murders.  Seems that felonies just ain’t what they used to be.

Glenn Reynolds has written about the process:
New felonies are being created all the time, often for activity that seems, morally, not terribly awful.  The currency of felony has been inflated, and has thus, inevitably, lost value.

...Where once “felony” meant things like murder, rape, or armed robbery, now it includes things like music piracy, or filling in potholes that turn out to be “wetlands...”

In my home state of Tennessee, we tried to deal with this problem some decades ago by creating special “Class X” felonies, with stiffer punishments, tighter requirements for parole, and so forth.

The issuance of new currency is a common response to runaway inflation.  It’s also a futile one if the authorities just keep the printing presses running.  That’s what happened in Tennessee, as lawmakers vied to designate more crimes as “Class X” felonies in order to demonstrate their toughness on crime, until the whole enterprise became a legislative joke...
One especially disturbing example of this “toughness” breast-beating is the increasingly agitated-for “hate crime” multiplier that allows prosecutors to turn offences such as petty theft or criminal mischief into felonies[3 (ot)].

Another troubling point is the repeated occurrence of the words “pleaded guilty to” (as in, “not ‘found guilty by a jury of his peers’”) in the felons’ stories.  Three of the five interviewed by Efrati lost their rights, despite having never faced a jury.

Smart conservatives should understand that they have a couple of issues with widespread public appeal here.

One is the increasing felonization of offences that are, in essence, “acts that somebody else doesn’t like” rather than “acts that really harm someone.”[4]  The question we should be asking is:  Is offense X worth depriving someone of their rights as a citizen forever?  Then maybe it shouldn’t be a felony.  Which follows American tradition.  Reynolds again:
...There’s a good argument -- under Due Process and the Eighth Amendment -- that designating minor examples of malum prohibitum as felonies ought to be unconstitutional...  If executing someone for a heinous murder just because he was under 18 when it was committed is unconstitutional, then surely separating someone from citizenship for minor violations of tax or firearms laws should be too much.

The second is this:  If we are going to “separate someone from citizenship,” shouldn’t some sort of jury action– if only review of the evidence and any plea agreement– be a requirement?  Yes, this would have major impact on the legal process as it is presently practiced, but there is much to be said for a fully-informed jury as a check on prosecutorial overreach.

Suggested reading:
The Cato Institute:  “Go Directly To Jail: The Criminalization of Almost Everything”

[1] The headline implies that including an appeal to restore gun rights makes for a more successful pardon request; an idea that the White House specifically declined to address.

“...accidentally, while trying to poison coyotes that were attacking wild turkeys and deer on property he farms.” (from the Journal article)

[3] Off topic:  Does anyone else get frustrated with the lameness of Volok’s PicoSearch function?  Not only does it return archive pages instead of individual posts (and frequently multiple hits that turn out to be the same page), but the quoted page titles and extracted text are often insufficient for determining the context, viz:
The Volokh Conspiracy
The Volokh Conspiracy HOME ARCHIVES SEARCH janes Get posts by e-mail WE: Eugene Sasha Michelle Juan Erik ...
... 5/12-7.1) into felonies when they're done for reasons that the ...
... , and double-digit inflation are the earliest things I remember being ... • Friday, 31 December 2004, 7:51pm GMT • 257.6k

[4] The canonical libertarian issues of the drug war and victimless crimes immediately come to mind.  However, both of these carry “culture war” burdens that IMO make them not the place to begin.

Posted by: Old Grouch in In Passing at 20:20:40 GMT | No Comments | Add Comment
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