Jury Nullification – The power to do what is right.

notguiltySometimes I post an article in my criminal law blog that is of interest to libertarians. Here is my three-part article on taking some considerable power back from the state:

Jury Nullification – The power to do what is right: Part I, Part II, Part III 

Wretched hive

Stopped by the cops – Freedom Feens 08/03/2014

Catholic libertarianFreedom Feens is a daily, liberty-related radio show with Michael W. Dean and a rotating cast of co-hosts.

I was co-host on a Feens broadcast this week. The 2-hour show is broadcast live at LRN.FM weeknights at Midnight Central time and at noon on weekends. A list of stations carrying the Freedom Feens is available here

Show notes for 08/03/2014: Feds collecting subversive internet memes — Nationalize the police? — FeenPhone Update — When the cops pull me over — Never, never, ever consent to a search — Do police have to read me my Miranda Rights? — I want to talk to a lawyer!

Download or listen to today’s show here:

[Download here] (right click, then Save link as . . .)

Or visit Freedom Feens

If you imagine that you are not a criminal, think again:

Illegal milk crate

Criminal law in a libertarian society

BarsCriminal laws prohibit (or require) an assortment of activities. If caught disobeying the criminal law, the lawbreaker is punished by the government. Criminal laws are usually written by legislatures and contain two types of crimes: 1) crimes that harm victims (such as murder, assault and theft); and 2) crimes that harm the person or property of no one, except perhaps the criminals themselves.

The latter type outlaws conduct such as drunkenness, gambling, prostitution, drug use, or anything that requires a license when such license has not been granted. Ultimately, a crime is whatever the government says it is.

See somethingA recent and popular trend is to make it a crime for anyone to fail to inform the government if they believe someone else is breaking the law. This trend, now firmly established regarding a few especially despicable crimes such as child sexual abuse, may spread to cover other crimes—and eventually all crimes.

In a nation where informing for the government is mandatory, when you “see something,” you “say something” . . . or else. Such a society would see the full blossoming of the police state and, like the 20th-century residents of fascist and communist states, a healthy fear of one’s neighbors, friends and even family could become a valuable survival skill.

In a libertarian society, the maximum role of the state would be to protect life, liberty and property. The use of defensive force is always legitimate, but the non-aggression principle limits the criminal law to things like assault, murder, theft, fraud, trespass and the like; that is, crimes against persons or their property. As Saints Thomas and Augustine taught, [here, here, and here] the law should not criminalize moral vices or other disapproved conduct, where such conduct does not directly harm others.

Stop fightingA libertarian criminal code would be compact and intuitive. Its function is to ensure peace and tranquility, not to make virtuous people. Instead of needing a lawyer to explain it, children would understand it by the time they were two years old.

[excerpted from Chapter 8 of Free is Beautiful: Why Catholics should be libertarian]

Ignorance of the law is no excuse

There is a legal principle that arose long ago: Ignorance of the law is no excuse. This principle prevents those charged with violating the law from claiming they did not know about the law. If a person could escape liability by such excuse, wrongdoers could seldom be punished.

This maxim is not as unfair as it seems where the criminal law is only used to prevent and punish harm to other people. In those cases, it hardly matters whether a person knows exactly what the written law says. He already knows that if he is harming someone’s person or property, he must pay for the harm done.

At this basic level everyone “knows” the law, so ignorance is no excuse, but today we have the opposite situation. Ignorance of the law has never been more widespread because the criminal law now prohibits so much conduct that is not intuitively evil. The law punishes all sorts of conduct that doesn’t hurt anyone (except perhaps the defendant himself) and it is no longer obvious what conduct is criminal and what is not. Without the non-aggression principle operating as a standard by which all may measure their actions, ignorance of the law becomes common and inevitable.

This situation is only aggravated by the sheer enormity of the criminal code. The Federal Criminal Code and Sentencing Guidelines alone consume almost 2500 printed pages. This does not include the various state codes, county and municipal ordinances.

No one—not even criminal lawyers—ever read the whole code. When the police arrest someone, they may have only a rough idea as to what crime (if any) has been committed. They learn to look through simplified charging manuals to find a crime to fit the conduct. Often enough, the police get it wrong and prosecutors must dig into the big books to make the defendant’s conduct fit under some law. Since even police and prosecutors must consult the laws to charge crimes, what hope does anyone else have of obeying all the laws when so many have no apparent connection to the golden rule?

The “ignorance of the law” maxim has never been more unfair than it is today. At the same time, it has never been more essential to the operation of the criminal courts. If ignorance of the law were an excuse, the courts would be in chaos.

How many people know how easily their everyday actions can result in a criminal conviction? Here are a token few among the thousands of crimes we may unwittingly commit:

  • Possessing a baby raccoon.
  • Burying a deceased pet in one’s own yard.
  • Raising arms while riding a roller coaster.
  • Sending annoying internet messages without identifying oneself.
  • Releasing a swine

Since no one can escape them all, we all become unwitting criminals. Ignorance may be a universal given, but it is never permitted as an excuse.

[excerpted from Free is Beautiful]

Libertarian does not mean libertine

Why do so many think that libertarians are “anything goes” libertines? Many conservatives believe that libertarians are really just liberals. Many liberals insist that libertarians are really just conservatives. How can it be both? It is wrong to say–as some do–that libertarians are “socially liberal and fiscally conservative.” These views stem from confusion about morality and criminality, such that our modern society has lost the ability to distinguish between vice and crime. Even worse, many so-called crimes are not vices at all.

Conservatives and liberals alike want to use government to force everyone to conform to their view of morality. And each would like to hold the whip against the other, and nobody is happy with the way things are.

This is because we have ignored what St. Augustine and St. Thomas Aquinas wisely taught: that punishment for crime should be limited to conduct that harms others (i.e., “theft, murder and the like”). Beyond that, neither individuals, nor the government have the right to punish or force people to do whatever the state tells them.

As to what is moral conduct, libertarians are just as variable as the population as a whole. Libertarian Catholics do not dissent from Church teachings. They embrace them. They hope and pray that others do likewise, but they refuse to use force (whether individual or collective) to make others conform to Christian morals. Only defensive force is legitimate.

That does not mean, however, that a free society would be an “anything goes” society. If drug addiction or prostitution were treated as health and moral issues—rather than as criminal issues—most families would still not want to see them on their streets. People will rightly have their preferences as to church, society, friends and the neighborhoods they live and work in. In later posts, we will see that a libertarian society would be more conducive to a moral lifestyle, not less; more supportive in the raising of families according to our beliefs and our purpose in life.

Thomas Aquinas: Should all vices be crimes?

Should all vices be crimes? This a question St. Thomas addresses explicitly in his Summa, wherein he objects to the criminalization of most vices on the ground that it would make criminals of most people. St. Thomas argues that “human law rightly allows some vices, by not repressing them” and with good reason:

[Virtuous conduct] is not possible to one who has not a virtuous habit, as is possible to one who has. Thus the same is not possible to a child as to a full-grown man: for which reason the law for children is not the same as for adults, since many things are permitted to children, which in an adult are punished by law or at any rate are open to blame. In like manner many things are permissible to men not perfect in virtue, which would be intolerable in a virtuous man.

Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of oth-ers, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.

What St. Thomas is teaching is nothing less than the non-aggression principle: that human law should limit its punishments to acts that hurt other people or their prop-erty. He goes on to assert that criminal punishment “belongs to those sins chiefly whereby one’s neighbor is injured.”

St. Thomas also cites God’s own unwillingness to prevent earthly evils, often times because the cure would be worse than the disease:

Human government is derived from the Divine gov-ernment, and should imitate it. Now although God is all-powerful and supremely good, nevertheless He al-lows certain evils to take place in the universe, which He might prevent, lest, without them, greater goods might be forfeited, or greater evils ensue. Accordingly in human government also, those who are in authority, rightly tolerate certain evils, lest certain goods be lost, or certain greater evils be incurred: thus Augustine says (De Ordine ii, 4): “If you do away with harlots, the world will be convulsed with lust.”

Elsewhere, St. Thomas repeats this truth that suppressing vices can lead to greater evils: “[Human law] does not lay upon the multitude of imperfect men the burdens of those who are already virtuous . . . Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils.

As St. Thomas foresaw (along with St. Augustine), the criminalization of other moral evils–drunkenness, drug abuse, sexual immorality and other vices which are not directly harmful to others or their propertyis unjust and results in greater sins.