28 Sep 2011

The Regulatory State Abandons Ancient Principle of Law

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“An unwarrantable act without vicious will is no crime at all.” –4 Bl. Comm. 21.

‘Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.’ — Pound, Introduction to Sayre, Cases on Criminal Law (1927).

The Wall Street Journal yesterday published an important article describing the impact of the ever-expanding number of federal crimes, commonly resulting from feel-good legislation passed recklessly with little serious consideration, on one of the fundamental principles of justice, genuine intent.

Even in Classical Antiquity, Roman justice recognized the principle that a defendant needed to possess actual intent to commit a crime to deserve conviction and punishment. In today’s United States, however, citizens cannot possibly be familiar the entire body of federal law and regulation, so the basic principle of mens rea, “a guilty mind,” is commonly eliminated by the dilution of standards.

For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a “guilty mind.”

This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them.

As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time.

Some of the cases described will make your blood boil with indignation.

This is the kind of article which proves the crucial importance of the Wall Street Journal to American society. The Journal commonly substitutes effectively for all the rest of the media combined in addressing the serious issues. Read the whole thing.

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