Despite its
reputation for freedom, the U.S. has the world's highest prison
population rate, 716 inmates per 100,000 people. More than half the
countries of the world have rates less than one-fifth of that. The
United States' rate is six times that of Canada and six to nine times
greater than the rates of Western European nations, with whom we have
the most cultural and historical ties. Why is criminality so much
higher here than in those countries? The U.S. has less than 5
percent of the world's population but 22 percent of its prison
population.
For decades the U.S.
prison system was a model for other countries. Then the trend
reversed. From 1978 to 2014, our prison population rose 408%.
Policies
in those years led to stricter federal sentencing, more law
enforcement—and an avalanche of new laws. The movement toward
broad, punitive crime control and prison policies wasn't based on any
scientific rationale, says Craig
Haney, a professor at the University of California (Santa Cruz).
"Rather, it was largely the product of a series of policy
decisions made for largely political reasons [that] legislators and
other politicians have found politically advantageous and expedient.”
Over
the past decade Congress has created, on average, 50 new crimes per
year. Not 50 new laws; 50 new crimes. That number has been far
exceeded by the Obama Administration, which in its first five years
created 439 new crimes, an average of 88 per year, bringing the total
federal crimes to 4,889. That does not include the state and local
crimes for which Americans can be prosecuted.
The
laws are voluminous. The Affordable Care Act ran 1,024 pages;
Sarbanes-Oxley 810 pages; and the Dodd-Frank Act 2,300 pages. These
were crafted by congressional staff personnel, not even read by the
senators and representatives, who couldn't possibly have the time to
read them all even if they wanted to. Laws have grown so extensive
and complicated that only lawyers, often working in teams, can know
everything a law requires; but everyone must obey them, which they
are unable to do. John Baker, a retired law professor who has
studied this issue, states, “There is no one in the United States
over the age of 18 who cannot be indicted for some federal crime.”
It's
not just the laws but the regulations. These are more voluminous
than the laws and set forth new crimes beyond what the laws specify.
Take the Obamacare regulations, for example. The bureaucracy wrote
30 words of regulations for every word in the legislation itself. The
109 final regulations pertaining to Obamacare contained more than 11
million words (11,588,500), compared to 381,517 words in the
legislation. In 2013 the Code of Federal Regulations was over
175,000 pages, the print edition occupied 238 volumes, and the index
alone took 1,242 pages. I am unable to find recent estimates of the
number of federal regulations, but estimates back in 1991 ran as
high as 300,000, and EPA regulations alone occupied more than 30
volumes of the Code of Federal Regulations. Undoubtedly those totals
are much higher now.
Andrew
P. Napolitano is a former New Jersey Superior Court judge and has
written seven books on the U.S. Constitution. He writes that the
federal government now regulates
“the thickness of leather in shoes, the water pressure in home
showers, the amount of sugar in ketchup, ad infinitum. It is
impossible to avoid confronting federal regulation of human behavior
unmentioned in the Constitution.”
Congress
permits the Supreme Court to allow the regulatory agencies to create
their own rules, which run roughshod over individual rights and often
counter to the intent of Congress. Charles Murray, a scholar at the
American Enterprise Institute, writes,
“If a regulatory agency comes after you, forget about juries, proof
of guilt beyond a reasonable doubt, disinterested judges and other
rights that are part of due process in ordinary courts. The
'administrative courts' through which the regulatory agencies impose
their will are run by the regulatory agencies themselves, much as if
the police department could make up its own laws and then employ its
own prosecutors, judges and courts of appeal.” Regulation has
become a 4th
branch of government, which usurps the functions of the other three
branches.
The
regulatory agencies create crimes by broadening the definition of
their powers granted by Congress or the Constitution. EPA, for
example, has extended its power under the Clean Air Acts and Clean
Water Act far beyond the intent of Congress, and it has extended its
Constitutional power over “navigable” waterways by claiming it
includes swamps, land under water only a few week a year—or even
only a few days— and potholes, ditches and culverts hundreds of
miles from any actual navigable water. In 2010 just 3 of more than a
dozen environmental statutes (Clean Air Act, Clean Water Act and
Resource Conservation and Recovery Act) contained 9,000 pages on
illegal behavior, any one of which can result in criminal
prosecution. Here are three examples from one of my previous books
(The Trojan Project) of people being sent to prison because of such
crimes.
In
Florida, Ocie Mills and his son served 21-month prison terms for
dumping clean
sand
on two lots they owned and on which they were trying to build a
house. They already had permission from the state of Florida, and
Florida officials had told them no federal permit was necessary. But
federal environmental police found them guilty of dumping a
“pollutant” into “navigable waters of the United States.”
After serving his full term in prison, Ocie attempted to get the
verdict overturned just to clear his name, but he failed. Federal
district judge Roger Vinson deplored the twisting of wording “worthy
of Alice in Wonderland,” to stretch the meaning of “navigable
water” to include dry land, clearly not even a wetland, much less a
navigable water, but said he had to apply the law as it existed.
John
Pozsgai, a Hungarian immigrant with little schooling bought an old
industrial dump, cleaned it up by removing 7,000 old tires—and then
committed the crime of adding topsoil without a federal permit. There
was no question the environment was improved by his actions. That
wasn't the point. The point was that he did so without a federal
permit. Three years in federal prison.
Bill
Ellen used to be the state environmental engineer who regulated
wetlands. He ran a nonprofit wildlife rescue center and had been
hired to convert part of an estate into a 103-acre wildlife sanctuary
when he ran afoul of permit regulations. But he wasn't draining or
filling wetlands—he was building them! The sanctuary was adding 45
acres of duck ponds. Ellen wasn't trying to evade government
regulations; he had already obtained 38(!)
permits and thought he was doing everything properly. But he was
sentenced to six months in jail for dumping two loads of dirt on a
portion of the property that the U.S. Soil Conservation Service had
previously declared a non-wetland. A U.S. Corps of Engineers
official using an expanded definition of “wetland” from a new
government manual—so new it wasn't even in effect yet—declared
Ellen guilty. He ended up being sentenced to 6 months in jail for a
regulatory standard that didn't even exist at the time of his
actions.
Historically,
Anglo-American jurisprudence required a guilty act (“actus rea”)
be accompanied by an awareness that the act is wrong (“mens rea”
in Latin, literally meaning “guilty mind”) for there to be a
crime. However, the federal government has increasingly imposed
criminal penalties under what is known as “strict liability”
laws. Bill Ellen's experience cited above is an example; clearly he
did not know he was doing anything wrong.
Another
example of criminal conviction lacking mens rea is the case of Abner
Schoenwetter.
He spent six years in a U.S. federal prison for violating an obscure
Honduran regulation by packaging lobsters with plastic instead of
cardboard. Under the Lacey Act, it is illegal for an American
citizen to violate any fish or wildlife regulation of another nation.
A reform measure, recently introduced by Congressman Jim
Sensenbrenner,
which would provide protection from this sort of injustice by a
default “mens rea” rule has been opposed by President Obama.
The
federal government's criminalization of human behavior continues to
increase with no sign of it stopping, much less reversing. Our
Constitution has been violated so often and so extensively that it no longer protects our rights and freedom as
was intended. The growth and exercise of federal power has
become so commonplace as to be viewed as acceptable or inevitable and render the
Constitution irrelevant to the power structure in Washington. The
Constitution mentions only three federal crimes: treason, piracy, and
counterfeiting. Does anyone involved in creating the hundreds and
hundreds of new federal crimes really care that they have no
justification under the Constitution?
The
Constitution grants the federal government only certain powers
enumerated in that document. All others are reserved to the states
or to the people under Article 10. The enumerated powers grant the
federal government no power to print paper money, regulate the
economy, establish a central bank (the Federal Reserve), provide
housing, food stamps or many other things in which federal
involvement is now widely accepted public policy. These abuses of
federal power will never be corrected by the elected leaders in
Washington who created them or their successors who continue to
benefit from them politically.
There
have been 27 amendments to the Constitution. These have all been
accomplished by proposed amendments achieving a two-thirds vote in
both house of Congress, followed by ratification in three-fourths of
the legislatures of the states. But Article V of the Constitution
provides an alternative route that bypasses Congress—which would
never pass amendments such as I suggest. The alternative route is
through approval of two-thirds of the state legislatures, which would
trigger a call for a convention to consider amendments, which would
then have to be ratified by three-fourths of the state legislatures.
(Black's Law Dictionary defines “constitutional convention” as: “A duly constituted assembly of delegates or representatives of the people of a state or nation for the purpose of framing, revising, OR amending its constitution.” [capitalization added] The enemies of amending the constitution claim that such a convention could result in throwing out the existing Constitution and framing a new one. However, those supporting such a convention have made it clear their purpose is to amend the constitution, not write a new one. It is clear from the Black's definition employing the word “OR” that such a convention can be simply for amending the Constitution. Nevertheless, to avoid confusion and deprive the enemies of such a convention of a lie with which to scare people, it is perhaps best to describe the reform effort as an Article V Amendments Convention, which is what is meant by the term Article V Convention. The further scare tactic that a “runaway” convention could result is absurd because ratification of any amendments would require approval by three-fourths of the state legislatures. )
