The Tyranny of Good Intentions: How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice [Paperback]

 

 

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~The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice~ is a solid critique of our nation's criminal justice system, which has strayed egregiously from its fundamentals and is continuously assailing the Rights of the Englishmen and the constitutional protections of our citizenry. "Good intentions have transformed law," note the authors, "from a shield for the innocent to a weapon used by the police. Having lost the law, we have acquired tyranny." With increasing lawlessness, the nefarious tactics of law enforcement are increasingly becoming indistinguishable from those of the "criminal underworld." The Anglo-American common law tradition is losing ground to zealous prosecutors, insensitive regulators, and overly ambitious law enforcement. They are increasingly blinded by ambition and lacking any ethical sense of fairness and integrity as many seldom afford dignity or concern for those they investigate.

The onset of the book highlights the cherished Rights of the Englishmen and offers a little legal history and some jurisprudence lessons. Innocent people are increasingly caught up in a bureaucratic web where vindictive prosecutors and uncaring bureaucrats destroy lives and livelihoods. As the authors make clear, the reason for abuses which are prevalent perhaps owes to a loss of the sense of justice. "The function of justice is to serve truth." When the quest for truth is lost, the focus on justice is dispensed with, and ambition of bureaucrats and prosecutors runs roughshod over the rights of the accused. In earlier times, the honor of the legal profession compelled prosecutors to have the utmost respect for the individual: "They respected people's reputations, and English judges wanted no innocent blood on their conscience... Their abhorrence of convicting the innocent was reinforced by religious beliefs of the age, such as accountability before God and the afterlife, and bad experiences with arbitrary judicial practices, such as Star Chamber proceedings in which due process and evidentiary standards were absent." In more recent times, prosecutors "will pick people that he thinks he should get, rather than pick cases that need to be prosecuted," notes Robert Jackson in 1940. This U.S. Attorney General and later Supreme Court Justice offered a ubiquitous warning of the most dangerous power of the prosecutor: "With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least some technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime... it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm-in which prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of prosecuting power lies." The "real crime becomes that of being unpopular... being attached to the wrong political views" or just simply being "obnoxious" to the prosecutor. The authors too make it clear the task of the prosecutors is not to go on "fishing expeditions" or of drawing family, friends and colleagues of the accused into a web of harassment and accusations or charges. The foremost aim of the justice system was the search for truth, and it was pursued alongside the sacrosanct notion of protecting at all times the rights and dignity of the accused or the suspect of an investigation. Those that stand accused should always be given the presumption of innocence. Though, naive people in custodial interrogation are often compelled to incriminate themselves by zealous investigators who deceptively make their case appear so ironclad as if they have no other choice. Today, as Jackson and Stratton make clear, many prosecutors and investigators are not above evidence tampering or planting, instigating instead of investigating, crafting circumstantial evidence by continual manipulation of a suspect, egregious psychological intimidation and setting up stings to entrap suspects. For the capricious prosecutor who cares only about racking up statistics, the ends justify the means. Thus, using Stalinist tactics such as those used in the case of Nicholas Bukarin is not out of the question.

Capricious asset forfeiture laws and arbitrary regulatory takings in some states encroach upon property rights. It allows police seizure of property in some cases with mere probable cause and destroying any semblance of due process. Many asset forfeiture pursuits pay little regard to the guilt or innocence of parties. Forfeiture laws allow law enforcement agencies to utilize and divvy up seized assets. Horrendous abuses where drug stings or busts transpire with third parties on someone's property have been used to justify seizure of that property even in such cases, where the owner has no involvement whatsoever or perhaps he merely reported it to authorities. The spoils of forfeited assets are often used to finance law enforcement and regulatory agencies. Budget cuts, spending freezes, and imprudent lawmakers compel some agencies to financially sustain more of their activities not only by fines but also heavy forfeitures. This only acts as an incentive for more abuse. In California, for example, luxurious mansions have been forfeited and turned into posh police precincts. The incentives for forfeiture abuse are omnipresent.

Roberts and Stratton make light of Crimes without Intent where the mens rea (intent) requirement is being vanquished. "Foremost among the rights of Englishmen is the requirement that no one can be prosecuted for a crime without evidence that a crime has occurred and evidence that links the accused to the crime" beyond a reasonable doubt. These protections serve to guard against unintended or accidental crimes. Oliver Wendell Holmes observed "even a dog distinguishes between being stumbled over and being kicked." Accidents are now being criminalized by zealous regulators and prosecutors. The authors cite the Exxon Valdez tanker spill case where the rule of law is trumped. In this case, a liability for a civil wrong is criminalized effectively blurring the line between civil and criminal law. This is a most dangerous precedent and any negligence on the part of Exxon should not be maligned as a criminal act since there was no intent to deliberately pollute the waters. Exxon didn't self-consciously set out to destroy its own ship and had nothing to gain by such an act. A non-existent conspiracy on the part of Exxon to pollute the Prince William Sound was contrived. Many other startling cases are cited. Bills of attainder and ex post facto laws are banned explicitly in our Constitution, but it hasn't stopped the government from utilizing such odious devices in indictments.

A chapter on Retroactive Law makes light of laws passed after the fact that criminalize or make civil liabilities out of actions that transpired long before they were illegal. Other chapters surmise the attack on cherished legal protection, the demise of attorney-client privilege where the government seeks to turn defense counsels into government spies. Francis Bacon declared that "the greatest trust between men is the trust of giving counsel." If this unassailable right is lost, defense counsels will be scarcely discernible from impotent Soviet public defenders who were little more than handmaids of the prosecutors. Forfeiting Justice is another ominous chapter; and it recants a tale of greedy government officials seeking to foreclose on a desirable private beachfront property surrounded by a national park. The owner objected to selling his property. Trying to implicate a multimillionaire beach property owner, they contrived probable cause and lead to a multi-agency no-knock SWAT operation into Donald Scott's house. Alarmed by the noise, Scott arose with a gun in hand in self-defense and was promptly shot dead. That warrant was his death warrant. A chapter entitled Ambition over Justice cites numerous examples of prosecutorial and police misconduct. It also makes light of how ethics are frequently lost today. J. Edgar Hoover found sting operations to be morally repugnant particularly those that sought to set snares and entrapments for people (especially hapless innocents with no prior history of involvement in such crimes.) His concern was that law enforcement making use of the nefarious methods of the underworld would only act to corrupt the law and hurt the innocent. Attempting to entrap or entice a suspect to commit an unrelated crime is common. Efforts to pile charges on a suspect through sting operations can give zealous prosecutors ammunition to intimidate suspect and elicit a trumped up plea bargain. The use of the testimony of police informants and ruses who may themselves be seeking to avoid prosecution presents credibility problems as well. Some informants are driven by sense of self-importance and those that simply want to be utilized again by police may act deceptively to incriminate suspects.

Abdicating Legislative Power makes light of stunning abrogation of Congressional responsibility in recent decades. The authors bear out that Congress should not be able to delegate away its powers, with "all legislative powers" vested in elected representatives. The ancient Anglo-Saxon legal maxim Delegata potestas non potest delagari ("a delegated power cannot itself be delegated") is violated in such instances. The purpose is to maintain accountability amongst lawmakers and keep them amenable to the people. Yet the federal regulatory state has countless unaccountable agencies that create laws, execute them, and adjudicate over violations. Having an agency that is judge, jury and executioner is against every principle of... Read more ›

Though I am not an attorney I have several friends who are attorneys. One of them gave me a copy of this wonderful book by Roberts and Stratton three weeks ago. After looking at the book for two weeks I picked it up and read it it two sessions. There are enough facts in the book that I am already familiar with to know in my gut that these two fellows are right on target. Their research and conclusions are troubling, but true. It takes a real piece of work to get men as diverse as Alan Dershowitz, Gordon Liddy and Milton Friedman to recommend a work like this. But this book is a piece of work, the most important book I've read this year and the Christmas present I plan on giving my thinking friends.

Excerpts from a book review by Nikos A. Leverenz in The Independent Review (Fall 2001)

The Tyranny of Good Intentions should make those who participate in our political and legal systems uncomfortable, if not self-loathing. Paul Craig Roberts and Lawrence M Stratton's principal argument is that what passes for "law" in the current civil climate is far removed from the "long struggle to establish the people's sovereignity" that dates back to pre-Norman England. Simply put, the law has been transformed from a shield that protects the people from the encroachments of government power into a sword that enables the government to lord over people. Those who are weary of the ongoing government assault on Microsoft and the tobacco industry or of the continued evisceration of civil liberties under the tutelary banner of the drug war should immediately recognize this transformation.

The Tyranny of Good Intentions highlights two broad areas in which the content and enforcement of the law now serve as a sword against what is loosely termed "the Rights of Englishmen": namely, "prohibitions against crimes without intent, retroactive law, and self-incrimination." First, the authors consider how government prosecutors, manifesting a win-at-all-costs mentality, sacrifice the quest for truth in order to advance their careers. Second, the adbication of legislative power to administrative agencies has eroded the Anglo-Saxon legal maxim "a delegated power cannot itself be delegated."

Those who are actively engaged in policymaking and law enforcement would do well to read The Tyranny of Good Intentions, even if it gives them only momentary pause in their assorted "public interest" crusades to leave hoof prints on the people's constitutional liberties.

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