Posts Tagged ‘bureaucracy’

Exceeding Their Authority: When Bureaucrats Create New Crimes, Justice Suffers

Wednesday, December 14th, 2011

One of our bugbears here at The Criminal Lawyer is the excessive number of federal crimes — particularly those that are created by regulators rather than by elected legislators. We’re not alone in this concern, and over the past several months we’ve noticed what can only be called a growing movement for reform.

A particular concern of ours has been the fact that an astonishing number of federal crimes lack any mens rea component. In other words, one can face prison even though their act was perfectly innocent — there was no intent to break the law whatsoever.

Mens rea is an essential part of American criminal justice. We don’t punish people simply because the committed some act or other, or even just because they harmed someone. Even if that harm was grievous. No, before we punish someone, there has to have been some culpability on their part. And culpability is defined by their mental state when they committed the act. There is a spectrum ranging from intentional through accidental, and the closer one was to the intentional end, the more severely we punish them. (If you want to be pedantic about it, there are a couple of other spectra of mental state as well — one’s ability to tell right from wrong, and one’s level of depravity — imagine them as the Y- and Z-axes to the X-axis of mens rea, if you like. But only mens rea is a component of crime itself — the others apply as defenses and as sentencing concerns.)

When defining a crime, here’s how it’s supposed to work: You specify what act you are forbidding, and you specify the mental state required to make it criminal — so bad that it deserves punishment. For example, if you plot to kill your neighbor, and succeed in killing him, then you are going to be punished far more harshly than a careless teenager who kills a family of four when he mistakenly runs a red light. Your act was more intentional, and thus more evil, than that of the teenager. Even though he did far more harm, you are more culpable, and thus your act is more criminal. And a man who accidentally trips on the sidewalk, knocking a little old lady into an oncoming bus? His act isn’t criminal at all. It was purely accidental, and unlike the teen driver he did not deviate from the normal standard of care to any extent that society would punish.

It is true that, as American jurisprudence evolved, there did arise certain “strict liability” crimes that have no mens rea requirement. Things like statutory rape. But those are exceptions to the rule, in the first place. And in the second place, the lack of mens rea is not really applicable — it usually has to do with elements of the crime that your own mental state could not affect one way or the other. For example, in the case of statutory rape, the issue is not whether you knew the girl was under the age of consent, but whether you had sex with someone without their consent — and someone under the age of consent, as a matter of law, cannot have consented to have sex with you. Your mens rea has nothing to do with whether or not she consented. It does not matter whether you knew she was underage, what matters is that she was underage, and thus you had sex with someone without their consent.

But though there were strict liability crimes, they were exceedingly rare.

Until regulators got involved.

Bureaucracy has a way of growing, and of expanding its own authority. Give an agency power to regulate, say, the mouse-pad industry, and they will start writing rules and procedures based on how mouse pads are actually produced and sold. Then they will start writing rules based on how the bureaucrats think mouse pads ought to be produced and sold, perhaps involving idealistic notions or academic fads. Meanwhile, they’ll busily craft tons and tons of rules and procedures micromanaging every aspect of how the main regulations are to be complied with. The number of regulations out there that Americans are expected to follow are uncountable, and nobody knows what’s in all of them. It’s beyond the capacity of the human brain to know what all the rules are.

And all of these rules have the force of law. Even though no elected official ever enacted them. The regulations are imposed, not by elected representatives who speak for (and must answer to) the citizenry, but by unelected government employees answerable to nobody.

That’s all well and good, when (more…)

You Thought Your Courthouse Was Bad? Try This: 466 Year Backlog of Criminal Cases!

Thursday, February 12th, 2009


Here in Manhattan, we like to brag that we’ve got the busiest courthouse in the world. But at least the system can handle it. According to Tuesday report from the chief justice of the New Delhi High Court, however, the courts in India are all just as busy, but the system is so broken that they just can’t handle it.

The Delhi High Court, which has jurisdiction over civil, criminal and constitutional matters, is so overwhelmed that the chief justice estimates it could take 466 years just to wade through the 2,300 criminal appeals waiting to be heard.

The reasons for the backlog are not complicated. India’s justice system has a longstanding reputation for “corruption, inefficiency and lack of accountability,” according to this AP report, “often making the rule of law unattainable for all but the wealthy and the well-connected.”

Corruption and unaccountability are enough on their own to doom any judicial system. They destroy the perception of justice. And in the realm of justice, as in the worlds of finance and politics, perception is reality. If people think that crimes are not efficiently, consistently and fairly punished — whether truly so or not — then punishment loses its deterrent effect. If people think that the law does not consistently and fairly protect rights and interests — whether it does or not — then the law may as well not exist, and the rule of law becomes a joke.

As prominent New Delhi lawyer Prashant Bhushan puts it, India “only lives under the illusion that there is a judicial system.” Bribing judges, he adds, is commonplace: “It’s a lucrative business.”

And it doesn’t look like anything can be done about it, at least not in the short term. Corruption is a commonplace of Indian society, says retired Supreme Court justice J.S. Verma, so “of course corruption is there. The people who man the courts and the court system come from the society.”

On top of the systemic failure of the rule of law, the courts are under an enormous administrative burden as well. There are only 11 judges for every million people — there are ten times as many in the U.S.

The administrative burden is exasperated by the bureaucracy, which slows down the legal process with overstrict formalities and procedures that can overwhelm a layperson.

The administrative burden can be met by shifting resources to the judicial system, and by eliminating bureaucratic time wasters. Political decisions only. But of course that would only happen if the government wanted to do so. That’s a tall order when the ruling classes are the beneficiaries of the present state of affairs.