Sunday, May 09, 2010

Federal laws are both too numerous and vague

The vast majority of Americans are unhappy with the working of Washington. The President and Congress have overwhelmed the American people with an incredible number of laws that are difficult for the voters and even policy makers to understand. Many bills are now passing Congress without being read by many, if not any, members. With so many bills coming out of Washington, DC, it should be no surprise that most Americans are unhappy with the results and find much of this legislation confusing.

The National Center for Policy Analysis has brought to my attention the work of two organizations that are working together to try and persuade Congress to stop writing criminal laws in such a manner that leaves innocent people vulnerable to unjust prosecution. One is the Heritage Foundation, which is one of the nation's premier conservative think tanks and the other is the National Association of Criminal Defense Lawyers. Together they prove true the adage that "politics makes strange bedfellows," since the latter organization is better known for its affiliation with liberal groups and causes.

According to a recent report they produced:

  • Over twenty federal laws that went into effect in 2005 and 2006, to combat nonviolent crime, lack 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 such, 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 have 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 rather than true threats to the general population.

Currently, 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. They are focusing on three laws in particular. Justice Antonin Scalia sees these type of laws as a great tool for "headline-grabbing prosecutors" who want to shut down unpopular and maybe even unethical behaviors, but not necessarily criminal ones. 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 for abuse.

It is interesting that, after centuries of writing laws that protect the rights of individuals and require proof of intent, that the Congress has forgotten this simple, but important, practice. It is time for the Congress to develop specific tests to make sure these laws comply with the letter and the spirit of the law.

Kevin Price is a syndicated columnist whose articles frequently appear at ChicagoSunTimes.com, Reuters.com, USAToday.com, and other national media. Kevin Price is also host of the Price of Business (M-F at 11 AM on CNN radio). Hear the show live and online at PriceofBusiness.com. Visit the archive of past shows here.

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