The Death of Due Process

By Peter Brimelow, Forbes Magazine, 12.11.00

"THE LEFT IS RIGHT: AMERICA IS AN UNJUST SOCIETY." Startling words to come from Paul Craig Roberts, 61, an architect (as assistant secretary of the Treasury) of the Reagan tax-cut revolution and now a syndicated columnist and chairman of the Institute for Political Economy. But he's not talking about discrimination or the unequal distribution of wealth. The problem, he says, is this: "Americans are no longer secure in law - the justice system no longer seeks truth and prosecutors are untroubled by wrongful convictions."

Recently, with coauthor Lawrence M. Stratton, a lawyer, Roberts published The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice (Forum, $25). In it he blames the Reagan and Bush administrations' wars on crime and drugs for institutionalizing many of the problems he sees developing. In particular he blames the near-sextupling of assistant U.S. attorneys in the early 1980s for a fatal dilution in prosecutorial standards. The prosecutions are not making the country safer for the law- abiding. They are making it more dangerous.

Historically, Roberts argues, Americans enjoyed the protection of what were termed "the Rights of Englishmen" by 18th-century jurist Sir William Blackstone, whose Commentaries on the Laws of England was a bestseller in the 13 colonies. The broadest of these was the right to due process. That meant punishment by dint of laws and evidence rather than, as has been the case in much of human history and is still the case in much of the world, by dint of a dictator's fiat. A related notion is that there should be no bills of attainder, legislation designed to criminalize a specific individual.

Other rights: to have the confidential assistance of an attorney; to confront adverse witnesses; to be protected from self-incrimination; to demand that the prosecution prove not just an evil deed but an evil intention (called mens rea); and to be protected from retroactive laws. Another English concept was that the government should not go after people by making arbitrary attacks on their property.

Most of these protections were enshrined in our Bill of Rights. And yet most have been subtly but steadily eroded in the U.S., Roberts maintains. "They can seize anyone, and any property, at any time," he says of today's law enforcement agencies. For example, civil cases are now often criminalized, through "novel theories" of the law invented by prosecutors to target specific defendants - very much like a bill of attainder. Plea bargains, traditionally frowned on by English courts because of possible coercion, now conclude 90% to 95% of federal criminal cases, increasing the prosecutors' incentive to pile on indictments - in effect, torturing the defendant - and, in the absence of a court test, reducing the incentive for careful, or even honest, police work. You get an idea of what is going on when you see a newspaper story about a crime (often a white-collar crime) in which there is a detail like this: "If convicted on all counts, so-and-so would be subject to a sentence of 120 years." It seems that every misdeed becomes, in the statute books, a panoply of offenses like money laundering and racketeering. By throwing a large statute book at a defendant, the prosecutor can blackmail the culprit (or an innocent person) into a plea bargain.

In the old days punishments were harsh, but they were not arbitrary. You could be hanged for stealing a sheep, but you would not also be charged with conspiracy to commit sheep stealing, willful evasion of taxes on stolen sheep and diminishing the civil rights of the sheep owner. Attacks on property? Asset forfeiture, aimed at drug dealers when radically extended by Congress in 1984 but now covering 140 other offenses, allows seizure on "probable cause" - i.e., at the discretion of police and prosecutors. Proceeds go to the seizing agency, creating a corrupting motive.

This erosion of Americans' historic protections has already caused some public scandal. The spectacle of innocents losing homes, boats and other property because tenants, customers and even passersby were using drugs caused House Judiciary Chairman Henry Hyde to introduce legislation this year attempting to rein in forfeiture. Roberts himself got interested when he began writing columns about the Wenatchee, Wash. child sex-abuse case, one of several curious Salem-witch-trial episodes in which numbers of adults have been convicted on the word of children seized and coaxed by investigators into testifying to imagined events.

But much of the erosion of historic protections is in the area of white-collar crime-involving hitherto respectable, if less than universally loved, corporations and businesspeople. Roberts here cites, see FORBES (Dec. 1, 1997) in calling attention to the extreme punishments meted out to people involved in essentially civil disputes with the government. What we have at work is an unholy alliance between business-hating liberals and crime-hating social conservatives. Roberts says that the Clinton Administration Justice Department has even introduced a sort of affirmative action to law enforcement, demanding quotas of white-collar prosecutions.

The results, as laid out by Roberts, are certainly disturbing. Savings and loan financier Charles H. Keating Jr. was convicted of the crime of employing fraudulent bond salesmen, even though there was no evidence he knew of their activities, and the crime was not on the books when he supposedly committed it. His conviction was overturned on constitutional grounds after he served 4 1/2 years in jail. Washington lawyer Clark Clifford, then in his 80s, was indicted by the federal government in New York for allegedly accepting bribes in his role as chairman of First American Bankshares. His personal assets were frozen and his credit card was rejected when he tried to pay the chauffeur who drove him to the airport on his way back to Washington, D.C. The case against Clifford was dropped when his partner was acquitted. Exxon Corp. faced cleanup costs and civil tort damages after the Exxon Valdez oil spill, but it was also indicted for intentionally killing migratory birds without a hunting license and dumping refuse without a permit. This "novel theory" allowed the Bush Administration Justice Department to bring criminal charges, which carry massively higher penalties. "Despite the absurdity of the charges," notes Roberts, "Exxon lacked the confidence in our crumbling justice system to go to trial." It settled for a $125 million fine.

The conservative establishment has greeted Robert's apostasy with a stricken silence. His book has not yet been reviewed in the Wall Street Journal or National Review magazine, despite his long connection with both.

Still, conservatives in the field do concede that Roberts has a point, while disputing other aspects of his analysis. "This is something that must eventually surface as an issue with conservatives," says Walter Olson, editor of Overlawyered.com, a legal-reform Web site. "He's right that criminal law, in certain narrow areas, has been made a vehicle for extortion," says Edwin R. Jagels, a famously aggressive district attorney in Kern County, Calif. But Jagels rejects the idea of widespread prosecutorial misconduct and sees no alternative to plea bargains, given crowded dockets. Justice Stephen J. Markman of the Michigan Supreme Court similarly concurs, but adds: "The ultimate responsibility lies with Congress and its penchant for overly broad criminal statutes."

Roberts, recently moved from D.C. to the Florida panhandle, is unyielding. "They may have dented crime," he says of his former allies, "but they've dented justice, too." With sweeping criminal laws the prosecutor can find some technical charge to hang on just about anybody.

Paul Craig Roberts is the author with Lawrence M. Stratton of The Tyranny of Good Intentions : How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice.

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