By William L. Anderson (originally posted at LewRockwell.com)
In the spring of 2006, three white lacrosse players from Duke University were charged with raping a black stripper who briefly had performed at a team party. It was the proverbial “Perfect Storm” of race, class, and sex, and united many of the usual political pressure groups that infect our body politic today.
The so-called Duke Lacrosse Rape Case (or better put, Non-Rape case) received media and political mileage because of who was involved, and the story had an ending that was somewhat more unusual than what is seen when accusations of rape and sexual assault occur. That was because the prosecutor that pursued the lacrosse players, the infamous Michael B. Nifong, went from hero to villain when defense attorneys successfully exposed that Nifong and his “star” witnesses had fabricated inculpatory evidence and Nifong had hidden evidence that was exculpatory.
His once-adoring media sycophants turned into inquisitors after Nifong’s lies became public and his name became synonymous with prosecutorial misconduct, and he ultimately lost his job as Durham County District Attorney and the State of North Carolina revoked his law license. Unfortunately, people believe that Nifong’s lies and willful misconduct were the real story of injustice, but they are not. In fact, they only are a sideshow of the legal terror that literally thousands of people have faced in the past 30 years, and the actual story is much worse than anything Nifong did because misconduct and wrongful convictions (or open invitations to misconduct) are built into the law itself.
Those of us that are intimately familiar with this case know how close these young men came to being put on trial in Durham and being convicted of “crimes” that never happened. The sad irony is that thanks to federal law and federal policies, Nifong did not have to present any real evidence in order to gain a conviction. All he needed was an accusation from Crystal Mangum, the accuser, and jurors would have had all of the “proof” they needed to vote “guilty.” Given the political and racial climate in Durham, it almost is certain that jurors would have convicted the three simply because the powers that be in that city would have demanded nothing less.
That Mangum’s story was not credible from the beginning was irrelevant to how the “justice” system worked in the Duke case – and in many cases involving accusations of sexual assault or molestation, not to mention the carrying out of drug laws. As a result, I will make an astonishing claim: I believe that thousands – yes, thousands – of people are or have been incarcerated in prison for “crimes” that never happened because of America’s legal revolution during the past century.
This state of injustice has not come about accidentally. Instead, it is the result of a politicized age in which intellectuals, politicians, and policymakers who deem themselves to be “Progressives” have fashioned the law into a set of rules and policies that even tyrants like Nero and Caligula would have considered to be unjust.
It Always Starts With Progressivism
American criminal law today does not reflect what the USA inherited from common law England, complete with the “Rights of Englishmen” that Americans also assumed for themselves. From the founding of the republic until the Progressive Era of the early 1900s, criminal law in this country mostly reflected the principle of malum in se, a legal doctrine that has holds that certain acts are bad in themselves.
For example, almost every society that has existed in history has had prohibitions against murder, theft, and robbery. From Hammurabi’s Code to the Ten Commandments to modern law, certain actions have been criminalized because they involved things everyone recognized as being wrong. This does not mean that such laws cannot be abused, but they do tend to reflect universal principles.
Unfortunately, legal systems also have reflected the legal doctrine of malum prohibitumwhich says certain acts are bad and worthy of punishment because they violate certain rules that government agents have created. For example, at the turn of the 20th Century, it was legal for Americans to ingest drugs like marijuana and cocaine, and alcohol was readily available. In a couple of decades, however, the law prohibited consumption of drugs and possession of alcoholic beverages because the powers that be had decreed as such. Furthermore, violation of those laws could mean a spell in prison, something that previously had been reserved for those who ran afoul of malum in se laws.
American Progressives, who had Grand Visions for how to organize life for Americans – including those Americans who had no desire to take part in the Grand Visions, tended to favor a legal system based upon malum prohibitum because they believed that individuals in society needed to conform to a set of social and political ideals created by the Great Superior Minds of Progressives. The idea that governments should not interfere with the routines of daily life – and especially those routines that involved mutually-consensual acts and the actions of the marketplace – was scorned by Progressives, who believed that individuals should not be permitted to act outside of boundaries set by political authorities who supposedly knew what was best for everyone else.
Progressives relentlessly attacked social institutions that did not easily fit under the umbrella of state-based control, and over time those institutions – entities like religious groups, voluntary societies, and local education – succumbed to statist pressure. All of these actions took place under the guise of “reforms” in which society was to be centralized under federal power with Progressive intellectuals and “reformers” being the ones to determine the boundaries of conduct of individuals.
The so-called Progressive reforms transformed American law in two ways. First, its insistence upon the expansion of state power and state-enforced regulation over the lives of individuals meant the inevitable growth of criminal law under malum prohibitum. The “duty” of Americans was to “obey” state directives, and those who did not obey were to be punished via imprisonment. Thus, in 1919, it was legal to possess alcoholic beverages and it was legal for business firms to brew and distill them. A year later, such things were crimes, accomplished by the mere stroke of a pen.
Second, by demanding the centralization of political, legal, and economic power via Washington, Progressives helped to create a federal legal system which permits prosecutors to take almost any individual action and find ways to criminalize it. No longer was the legal emphasis upon the protection of life, liberty, and property, but rather it was on subjected people following sets of rules created by intellectuals and politicians.
The legal system that came from the Progressive Era and has metastasized unabated for more than a century is hostile to the venerable “Rights of Englishmen” that undergirded American criminal law for many years and nowhere is this better reflected than in the evisceration of the important but now little-known legal doctrine of mens rea. To understand the contempt that modern Progressives have for individuals and to understand the utter tyranny of modern American criminal law, one first must understand why mens rea is vital to protecting individual rights.
The term mens rea essentially means “a guilty mind.” That is, in order for one’s action to be determined as criminal or not, the mindset of the person engaging in a particular action was paramount. For example, say I am driving cautiously in a neighborhood when suddenly a child chasing a ball comes out of nowhere and appears in front of my car, and I hit him. I did not intend to hit the child, nor was I acting in a reckless manner; the result was an unavoidable accident, not a criminal act on my part.
However, say that I see a child in the street and speed up my car in order to hit him. The action was deliberate and, thus, criminal under a doctrine of mens rea. In other words, intent matters under criminal law, or at least it is supposed to matter.
The growth of the regulatory and bureaucratic state with its emphasis upon malum prohibitum, however, is incompatible with mens rea and over the years, American courts have slowly but surely eliminated it from this nation’s de facto body of law. Every year, local, state, and federal agencies churn out thousands of new regulations, most of which have the power of law, with many carrying criminal penalties for people who violate them. Furthermore, the American courts have ruled time and again that “ignorance of the law is no excuse” for disobeying them.
In other words – and I am not exaggerating here – every American is responsible for knowing every regulation and every law that is passed and, more important, must obey each one or face a penalty and even prison for failure to do so. For ordinary people, there is no exception unless a judge or administrator decides not to punish someone for violating a rule of which the person had no knowledge.
There are classes of people that are exempt from having to know all of the laws and regulations, however: those charged with enforcing the laws, from administrators to police to prosecutors to judges. I am not kidding, nor do I exaggerate. The very people who are supposed to be the most intimate with laws and regulations because their very livelihoods rest upon their enforcement also are the very people who are legally permitted to be ignorant of such laws and regulations.
It gets worse. People in those enforcement lines of work who are caught violating the law or policies pertaining to enforcement are exempt from having people whom the law enforcers have victimized from seeking legal redress in the courts. Thus, when the three falsely-accused defendants in the Duke Lacrosse Case filed lawsuits against the City of Durham and prosecutor Michael Nifong, the federal courts dismissed most of the claims because of the legal doctrines of immunity that the courts and legislatures have imposed.
The effect is that wrongdoers, should they be employed by government, are pretty much exempted from having to face consequences of their wrongdoing. This is not an oversight; it is the result of the political goals that perpetrators of modern regimes have imposed. I call it a corollary of what economists call “Capture Theory.” The government employees in the law enforcement lines of work have “captured” the system and have rewritten the rules in order to protect themselves at the expense of the people these government agents victimize every day.
And even in the very rare events when perpetrators are charged with wrongdoing, they often are acquitted by the system. For example, the infamous “not guilty” verdict in a recent trial of two former police officers from Fullerton, California, for beating a homeless man to death despite the overwhelming evidence of their guilt (evidence caught on videotape) reflect the modern political reality that government agents truly are shielded from consequences of their own actions, even when they break the law. William Norman Grigg also has documented numerous times when U.S. police officers essentially engaged in summary executions of unarmed and unthreatening people, yet have faced no legal or even personal consequences for their actions.
Accusations and Political Goals
All of this brings us back not only to the Duke case but also to the thousands of cases in which people are charged with sexual assault and/or child molestation. At this point, I will make a very provocative statement: U.S. prisons are full of thousands of wrongfully-convicted people and thousands more outside of prison live under the weight of being convicted felons. American law has become so tyrannical that many wrongfully-charged people cannot defend themselves from false charges because the law is stacked against them.
In 1974, Congress passed the Child Abuse Prevention and Treatment Act or CAPTA, better known as the Mondale Act for its vocal sponsor, Sen. Walter Mondale of Minnesota. The law had all of the hallmarks of the Progressive outlook for which Mondale was famous, including the offering of federal money to the states to encourage the prosecution of more people for child abuse and child molestation. (Congress passed new editions of CAPTA over the years and it remains on the books today.)
Congress later passed the Violence Against Women Act which encouraged states and localities to prosecute rape and sexual assault against women, promising federal money to those governmental entities for doing so. The laws also helped to create and fund governmental and government-connected agencies such as Child Protective Services to investigate claims of abuse and molestation and to aid law enforcement agencies in bringing charges against alleged perpetrators of abuse.
Understand that the offenses listed in these laws are not imaginary constructs. Children areabused and, yes, many are molested and the damage done to those children is incalculable. If the law had resulted in the actual prosecution and punishment of real perpetrators, that would have been one thing – and I would not have written this article. Rape and sexual assault are terrible things and no one denies that fact.
Instead, the laws led to what I believe are thousands of false charges and convictions because they changed the fundamental rules of evidence. Before CAPTA and the VAWA, most states required corroborating evidence besides the mere accusation of abuse and the like because authorities recognized that it is too easy for people to make false charges due to ulterior motives.
For example, it is not unusual for warring spouses in divorce litigation to make accusations of abuse or worse against one another to aid their own claim for child custody. Before CAPTA, such accusations would have required evidence other than the spouse’s claim. After CAPTA and after VAWA, the accusation itself became absolute proof of criminal wrongdoing.
These new standards of evidence, while guaranteeing false accusations and wrongful convictions, were not written to satisfy justice but rather to satisfy pressure groups with political goals. The modern child protection industry, with parents having to worry about a government agency falsely accusing them of abuse or worse and having their children removed from their own care, could not exist without CAPTA. Likewise, it now is much too easy for someone to be accused falsely of rape, something that feminists and their political allies have demanded for years.
What makes things worse is that prosecutors, both state and federal, are permitted to pile up charges upon charges on people and then hold the very real prospect over their heads of draconian punishments should they be convicted on even one of those charges. The result is that 95 percent of all U.S. criminal cases result in guilty pleas, and lawyers of people who demonstrably are innocent often will encourage their clients to plead to “something” just to give prosecutors their little victories and to prevent even worse punishments.
Many other writers and I have written about how a false accusation industry sprang up, and how innocent people were railroaded into prison. Absurd prosecutions now have become the norm, as the lure of federal money and political benefits to crusading prosecutors have overcome any whit of interest in justice.
In the LRC piece, “Nifonged in Narragansett,” I wrote nearly seven years ago, the attorney general of Rhode Island charged a man with rape for actions he allegedly committed 32 years before. The accuser had been undergoing the infamous (and discredited) “recovered memories” therapy and suddenly “remembered” this man having raped her.
Now, she could not remember when or where it happened. Instead, she just “remembered” that it was some time in a six month span and somewhere in the neighborhood where she lived. In other words, the whole thing reeked of absurdity, but it was perfectly logical under the terms of the VAWA. (Shortly after the LRC piece was published, the AG dropped the charges. However, that did not change the fact that he still could have won a conviction with just the woman’s claims, should the jurors have chosen to believe her.)
Likewise, we saw a spate of child molestation investigations that would have made the weirdest episodes of “The Twilight Zone” seem to be logical by comparison. I have written about many of them and have seen how some of the worst offenders – like Janet Reno – have been rewarded for gaining wrongful convictions. For that matter, Nifong himself was the darling of the U.S. mainstream media for many months (and especially the New York Times) until it became abundantly clear that he was lying. And even then, a number of media and legal writers, including Lester Munson of ESPN, still tried to cover for him.
Many of these wrongful convictions came right from the playbook pages of Progressivism. First, federal laws changed the legal incentives to financially and politically-reward prosecutors who got wrongful convictions – and then ensured that even if those same prosecutors later were found to be lying, that they would escape meaningful punishment. Centralization of political and judicial power has been a main priority for Progressives for more than a century.
Second, by helping to create scores of new agencies staffed by “experts” who then plied their “expertise” in courts and convinced jurors that the charges – however absurd they seemed to be – really were true, the government ensured an increase in the prison population, thus strengthening the Prison-Industrial Complex that exists in this country. Third, the federal government was able to eviscerate the precious “Rights of the Accused” that Americans supposedly enjoyed, thus further empowering government agents. All of these things have come from the playbooks of Progressive writers and politicians such as Herbert Croly and Woodrow Wilson.
American criminal law, be it at the state or federal level, is a mere shadow of what it used to be. The vast growth of federal crimes and the evisceration of the rules of evidence at all levels have turned what the famed English jurist William Blackstone once termed as a “shield for the innocent” into a system of governmental tyranny.
This is no accident. The tyrannical criminal law regime that grips America is what the Progressives wanted all along. They wanted Americans to have to live in fear of a powerful state that could and should tell them how to live, what to believe, and what to do. And the police state is what we have.
William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute. He also is a consultant with American Economic Services. Visit his blog..
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