Saturday, July 03, 2010

Thread by Thread

An interesting development of the 20th and 21st centuries: the criminal courts are swamped, more than they have ever been, even in Idaho, a state whose entire population is smaller than that of many cities.  The county jails are stuffed to capacity and beyond.  I practice exclusively criminal defense, and my filing cabinet is about to explode.  Yet we live in a society where an increasing number of evils are accepted and even condoned.  How can so many people be in the system in a society where bad behavior is so celebrated?

The law distinguishes between two types of bad acts: malum in se and malum prohibitumMalum in se refers to something that is evil in itself -- violations of the law of God: murder, rape, theft, perjury, etc.  Malum prohibitum is an act that is (at worst) morally neutral in itself, but which the law of man prohibits -- what we might call "regulatory crimes": driving without privileges; carrying a concealed or unlicensed weapon; possessing alcohol as a minor; being in a city park after dark (yes, this is a misdemeanor in the city of Boise); carrying an open container of alcohol within city limits; tearing the tags off mattresses.   

These regulatory crimes account for a substantial percentage of my caseload and take up an awful lot of my time.  Many citizens have racked up a criminal record and even spent time in jail because they have run afoul of the law of picayune peccadilloes.  And when they are convicted of these crimes -- for more often than not, there is no defense to the charge -- they may, if they are unfortunate enough to fall into the hands of overzealous prosecutors, suffer penalties out of all proportion to the seriousness of the act.  In most cases, having a misdemeanor conviction on one's record is already a disproportionate consequence, yet this is only the beginning.  Being lawbreakers in need of rehabilitation, these newly-minted criminals may be placed on probation, made to take classes or undergo treatment, herded into programming designed to cure their criminal mentality, and generally forced to expend an inordinate amount of time, resources and money into paying their grossly inflated debt to society.  The size, scope and reach of the criminal justice system is proof that charity has grown cold in the world, and not just on the part of lawbreakers.

Where does this preoccupation with creating regulatory crimes come from?  My own theory is that it arises from the fact that we love licentiousness more than freedom.   This slavery of individuals to their appetites -- especially the appetite for sexual immorality -- extends out into society, creating havoc and confusion. Finding that there are consequences to bad behavior doesn't seem to motivate us to straighten up; instead, we search for ways go on behaving badly without consequences.  Political correctness is one way we try to blunt whatever pricks our consciences; another, and extremely popular method is to invoke the police powers of the state.  Every time an outward manifestation of spiritual disorder crops up, instead of coping with the source of the disorder, we figure the solution is to pass a new law.  Each new law is like a thread, holding back our freedom just a little.  We figure it's only a little restriction, and that it confers great benefits, so we tolerate it.  But thread after thread is wound around us until, like Gulliver, bound by hundreds of Lilliputian threads, we can no longer move.  We have exchanged true freedom -- the freedom to do what is right -- for mere license, which amounts to slavery.

We are choked with petty laws, but can't figure out why the cure for the disorder of society continues to elude us.  We strain at gnats, and let through camels.  We save the world from the scourge of open containers of alcohol in city limits, and close our eyes to the evils of promiscuity and making babies out of wedlock.  Cops with binoculars stake out school yards to keep tobacco products out of the hands of children, and the schools fill those same hands with how-to manuals on contraceptives and filthy sexual practices.  We crack down on glass bottles in parks, and celebrate in glossy magazines the adulterous affairs of bubbleheaded celebrities who live in glass houses.  We send the Civil Air Patrol out to break up kid keggers in the desert, and enshrine the murder of children in their mothers' wombs as a constitutionally-guaranteed right.  These picky rules rigidly enforced are a product of, and a distraction from, our failure to live uprightly.

The idea that it is possible to separate private life from public life is a lie.  The fact is that if morality and order prevailed in our private lives, they would also prevail in society at large, without the need for petty legislation.  But we have ceased to govern ourselves.  We want to be free to do whatever we want, so we try to beat back the assault of bad consequences, not by stopping the behavior that brings on those consequences, but by ever stiffer regulations on otherwise legitimate behavior.  We try to have it both ways.  In vain.

It is time we acknowledged that the law is a poor substitute for self-governance.  It is time we started living moral, upright lives and cut the paralyzing threads.
Statesmen, my dear Sir, may plan and speculate for Liberty, but it is Religion and Morality alone, which can establish the Principles upon which Freedom can securely stand. The only foundation of a free Constitution is pure Virtue, and if this cannot be inspired into our People in a greater Measure than they have it now, They may change their Rulers and the forms of Government, but they will not obtain a lasting Liberty. They will only exchange Tyrants and Tyrannies.

John Adams


  1. Reminds me of Arlo Guthrie's being arrested for littering. This is a "morals" charge. The whole story is cataloged in his famous song, "Alice's Restaurant."

  2. What? I can't rip the tags off mattresses in Idaho? Well, that does it - I aint never gonna move there! Plus, I like to wander aimlessly around parks in the dark. Such a violation of rights!

  3. This reminds me of an ad for a law firm that I hear on the radio now and again on the radio. It goes on that the problem with so much crime is that lawyers, especially prosecutors, are not doctors. They do not treat the cause of the behavior or the crime, but rather punish the person for it. It goes on that we need to teach parenthood and morality in school just like we teach history and gov't.

  4. Had another read of this. Great stuff. You clarified much for me with your elaboration on the malum in se / malum prohibitum distinction.