My father once told me something he had learned from an older friend who had grown up in the USSR. He said that one of the most important tools for a tyrannical government was to ensure that every citizen was always breaking the law. This was one of the benefits of the dysfunctional Soviet economy: everyone had to resort to the black market. That meant everyone was a criminal. And, since Soviet law enforcement knew that, it meant that it was entirely in their discretion to arrest you or not. When anyone can be arrested at any moment, you live in a constant state of fear.
We’re not there yet in the United States, obviously, but the rapid expansion of regulation means we might be closer than some think. In 2011, Harvey Silvergate published Three Felonies A Day: How the Feds Target the Innocent, which argued that on average, each individual American commits at least three felonies every single day without any knowledge that they are doing so.
Now Glenn Reynolds has a new paper out called Ham Sandwich Nation: Due Process When Everything is a Crime. According to the abstract:
Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process — the decision whether to charge a defendant, and with what — is almost entirely discretionary. Given the plethora of criminal laws and regulations in today’s society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in.
What good is due process on a crime-by-crime basis if there are so many unknown criminal statutes that everyone can be prosecuted–successfully–for something?
I see a lot of parallels between this and what I have argued is the strongest argument against a policy of abortion at any time for any reason. The term “process” itself suggests that we need to be concerned with more than just a particular moment in time. We need to be concerned with the entire process from start to finish. Moreover, I would argue that the start of any process is the most crucial element. If you get off on the wrong foot, then every subsequent part of the process is tainted.
By admitting persons into the criminal system (even if that system were optimal and perfect) on a discretionary basis, the process fails a basic equality test from the start.
Similarly, by subjecting fetuses to a discretionary life and death decision, equality is similarly disregarded.
On what grounds can we claim equality if a completely random formula of bias, judgement, circumstance is used to select members of a system, even assuming a perfect system? We can’t. If you care about process, it can’t be tainted from the start.
I remember reading a story about a pig in Soviet Russia that was starving in the courtyard of the local jailhouse because it had been arrested for trespassing and likely the real owner couldn’t pay the fine so it was never claimed.
Is there a parallel here with living in a continual state of “conviction” for such things as masturbation, drinking coffee, not paying sufficient offerings when money is tight, etc.?