on August 8, 2000
Though I am not an attorney I have several friends who are attorneys. One of them gave me a copy of this wonderful book by Roberts and Stratton three weeks ago. After looking at the book for two weeks I picked it up and read it it two sessions. There are enough facts in the book that I am already familiar with to know in my gut that these two fellows are right on target. Their research and conclusions are troubling, but true. It takes a real piece of work to get men as diverse as Alan Dershowitz, Gordon Liddy and Milton Friedman to recommend a work like this. But this book is a piece of work, the most important book I've read this year and the Christmas present I plan on giving my thinking friends.
on December 23, 2004
~The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice~ is a solid critique of our nation's criminal justice system, which has strayed egregiously from its fundamentals and is continuously assailing the Rights of the Englishmen and the constitutional protections of our citizenry. "Good intentions have transformed law," note the authors, "from a shield for the innocent to a weapon used by the police. Having lost the law, we have acquired tyranny." With increasing lawlessness, the nefarious tactics of law enforcement are increasingly becoming indistinguishable from those of the "criminal underworld." The Anglo-American common law tradition is losing ground to zealous prosecutors, insensitive regulators, and overly ambitious law enforcement. They are increasingly blinded by ambition and lacking any ethical sense of fairness and integrity as many seldom afford dignity or concern for those they investigate.
The onset of the book highlights the cherished Rights of the Englishmen and offers a little legal history and some jurisprudence lessons. Innocent people are increasingly caught up in a bureaucratic web where vindictive prosecutors and uncaring bureaucrats destroy lives and livelihoods. As the authors make clear, the reason for abuses which are prevalent perhaps owes to a loss of the sense of justice. "The function of justice is to serve truth." When the quest for truth is lost, the focus on justice is dispensed with, and ambition of bureaucrats and prosecutors runs roughshod over the rights of the accused. In earlier times, the honor of the legal profession compelled prosecutors to have the utmost respect for the individual: "They respected people's reputations, and English judges wanted no innocent blood on their conscience... Their abhorrence of convicting the innocent was reinforced by religious beliefs of the age, such as accountability before God and the afterlife, and bad experiences with arbitrary judicial practices, such as Star Chamber proceedings in which due process and evidentiary standards were absent." In more recent times, prosecutors "will pick people that he thinks he should get, rather than pick cases that need to be prosecuted," notes Robert Jackson in 1940. This U.S. Attorney General and later Supreme Court Justice offered a ubiquitous warning of the most dangerous power of the prosecutor: "With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least some technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime... it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm-in which prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of prosecuting power lies." The "real crime becomes that of being unpopular... being attached to the wrong political views" or just simply being "obnoxious" to the prosecutor. The authors too make it clear the task of the prosecutors is not to go on "fishing expeditions" or of drawing family, friends and colleagues of the accused into a web of harassment and accusations or charges. The foremost aim of the justice system was the search for truth, and it was pursued alongside the sacrosanct notion of protecting at all times the rights and dignity of the accused or the suspect of an investigation. Those that stand accused should always be given the presumption of innocence. Though, naive people in custodial interrogation are often compelled to incriminate themselves by zealous investigators who deceptively make their case appear so ironclad as if they have no other choice. Today, as Jackson and Stratton make clear, many prosecutors and investigators are not above evidence tampering or planting, instigating instead of investigating, crafting circumstantial evidence by continual manipulation of a suspect, egregious psychological intimidation and setting up stings to entrap suspects. For the capricious prosecutor who cares only about racking up statistics, the ends justify the means. Thus, using Stalinist tactics such as those used in the case of Nicholas Bukarin is not out of the question.
Capricious asset forfeiture laws and arbitrary regulatory takings in some states encroach upon property rights. It allows police seizure of property in some cases with mere probable cause and destroying any semblance of due process. Many asset forfeiture pursuits pay little regard to the guilt or innocence of parties. Forfeiture laws allow law enforcement agencies to utilize and divvy up seized assets. Horrendous abuses where drug stings or busts transpire with third parties on someone's property have been used to justify seizure of that property even in such cases, where the owner has no involvement whatsoever or perhaps he merely reported it to authorities. The spoils of forfeited assets are often used to finance law enforcement and regulatory agencies. Budget cuts, spending freezes, and imprudent lawmakers compel some agencies to financially sustain more of their activities not only by fines but also heavy forfeitures. This only acts as an incentive for more abuse. In California, for example, luxurious mansions have been forfeited and turned into posh police precincts. The incentives for forfeiture abuse are omnipresent.
Roberts and Stratton make light of Crimes without Intent where the mens rea (intent) requirement is being vanquished. "Foremost among the rights of Englishmen is the requirement that no one can be prosecuted for a crime without evidence that a crime has occurred and evidence that links the accused to the crime" beyond a reasonable doubt. These protections serve to guard against unintended or accidental crimes. Oliver Wendell Holmes observed "even a dog distinguishes between being stumbled over and being kicked." Accidents are now being criminalized by zealous regulators and prosecutors. The authors cite the Exxon Valdez tanker spill case where the rule of law is trumped. In this case, a liability for a civil wrong is criminalized effectively blurring the line between civil and criminal law. This is a most dangerous precedent and any negligence on the part of Exxon should not be maligned as a criminal act since there was no intent to deliberately pollute the waters. Exxon didn't self-consciously set out to destroy its own ship and had nothing to gain by such an act. A non-existent conspiracy on the part of Exxon to pollute the Prince William Sound was contrived. Many other startling cases are cited. Bills of attainder and ex post facto laws are banned explicitly in our Constitution, but it hasn't stopped the government from utilizing such odious devices in indictments.
A chapter on Retroactive Law makes light of laws passed after the fact that criminalize or make civil liabilities out of actions that transpired long before they were illegal. Other chapters surmise the attack on cherished legal protection, the demise of attorney-client privilege where the government seeks to turn defense counsels into government spies. Francis Bacon declared that "the greatest trust between men is the trust of giving counsel." If this unassailable right is lost, defense counsels will be scarcely discernible from impotent Soviet public defenders who were little more than handmaids of the prosecutors. Forfeiting Justice is another ominous chapter; and it recants a tale of greedy government officials seeking to foreclose on a desirable private beachfront property surrounded by a national park. The owner objected to selling his property. Trying to implicate a multimillionaire beach property owner, they contrived probable cause and lead to a multi-agency no-knock SWAT operation into Donald Scott's house. Alarmed by the noise, Scott arose with a gun in hand in self-defense and was promptly shot dead. That warrant was his death warrant. A chapter entitled Ambition over Justice cites numerous examples of prosecutorial and police misconduct. It also makes light of how ethics are frequently lost today. J. Edgar Hoover found sting operations to be morally repugnant particularly those that sought to set snares and entrapments for people (especially hapless innocents with no prior history of involvement in such crimes.) His concern was that law enforcement making use of the nefarious methods of the underworld would only act to corrupt the law and hurt the innocent. Attempting to entrap or entice a suspect to commit an unrelated crime is common. Efforts to pile charges on a suspect through sting operations can give zealous prosecutors ammunition to intimidate suspect and elicit a trumped up plea bargain. The use of the testimony of police informants and ruses who may themselves be seeking to avoid prosecution presents credibility problems as well. Some informants are driven by sense of self-importance and those that simply want to be utilized again by police may act deceptively to incriminate suspects.
Abdicating Legislative Power makes light of stunning abrogation of Congressional responsibility in recent decades. The authors bear out that Congress should not be able to delegate away its powers, with "all legislative powers" vested in elected representatives. The ancient Anglo-Saxon legal maxim Delegata potestas non potest delagari ("a delegated power cannot itself be delegated") is violated in such instances. The purpose is to maintain accountability amongst lawmakers and keep them amenable to the people. Yet the federal regulatory state has countless unaccountable agencies that create laws, execute them, and adjudicate over violations. Having an agency that is judge, jury and executioner is against every principle of free constitutional government, separation of powers and federalism. Administrative courts are little more than kangaroo courts of the bureaucracies. A convicted defendant can defer a judgment to the independent federal judiciary, but most federal judges sustain the administrative judgments ostensibly since they lack "expertise."
There are still more chapters. I've sketched a cursory synopsis of this book in hopes of capturing the gravity of the current crisis and the breadth of this work that Stratton and Roberts have produced. This book is succinct, yet multi-faceted, and highly recommended not just for aspiring jurists but anyone interested in preserving our Anglo-American common law tradition. Our cherished constitutional protections may be egregiously imperiled and vanquished if abuses go unabated and reforms are not put in place. This book is a summons for concerned citizens, legislators, and yes even government attorneys of integrity to act to uphold and restore our cherished legal protections to their proper standing. This book is more a diagnosis only offers a few solutions without much detail. As an aside, Charles Colson has offered prescriptive wisdom on possible legal reforms, establishing restorative justice, and doing away with our modern Pharisaic system of justice.
Roberts is a journalist, economist, and a former official with the Reagan administration. He is a member of the Virginia and D.C. bar and has taught at Georgetown Law. Stratton and Roberts offer meaningful prospects for reform-with a sigh at the perils of ignoring the tyranny of good intentions that has crept upon us. Moreover, preserving a fair, judicious and equitable system of criminal justice is not a conservative, liberal or even libertarian cause. This book has not surprisingly educed praise from all corners of the political spectrum from right to left-including that of G. Gordon Liddy, Milton Friedman, and Alan Dershowitz.
"Government is not reason. It is not eloquence. It is a force, like fire: a dangerous servant and a terrible master." -George Washington
on October 17, 2001
Excerpts from a book review by Nikos A. Leverenz in The Independent Review (Fall 2001)
The Tyranny of Good Intentions should make those who participate in our political and legal systems uncomfortable, if not self-loathing. Paul Craig Roberts and Lawrence M Stratton's principal argument is that what passes for "law" in the current civil climate is far removed from the "long struggle to establish the people's sovereignity" that dates back to pre-Norman England. Simply put, the law has been transformed from a shield that protects the people from the encroachments of government power into a sword that enables the government to lord over people. Those who are weary of the ongoing government assault on Microsoft and the tobacco industry or of the continued evisceration of civil liberties under the tutelary banner of the drug war should immediately recognize this transformation.
The Tyranny of Good Intentions highlights two broad areas in which the content and enforcement of the law now serve as a sword against what is loosely termed "the Rights of Englishmen": namely, "prohibitions against crimes without intent, retroactive law, and self-incrimination." First, the authors consider how government prosecutors, manifesting a win-at-all-costs mentality, sacrifice the quest for truth in order to advance their careers. Second, the adbication of legislative power to administrative agencies has eroded the Anglo-Saxon legal maxim "a delegated power cannot itself be delegated."
Those who are actively engaged in policymaking and law enforcement would do well to read The Tyranny of Good Intentions, even if it gives them only momentary pause in their assorted "public interest" crusades to leave hoof prints on the people's constitutional liberties.
on August 7, 2000
A fascinating analysis of the origins of the police state arising out of America's bureaucracy. As the authors present it, the Constitution has become an relic for the history books. Ordinary people are routinely crushed by viciousness on the part of US Government employees who act with a sense of mission, and without a sense of proportion. This is not a first person account, but a well researched journalistic attempt to tie together disturbing trends that most people see as isolated events. As one who has experienced a Mad Dog Prosecutor (and written a first-person account of it), I can state that this book is far from exaggerated in its description of the abuse of ordinary and honest people by our government. The constitutional protections we were taught all about in school have become a fiction.
on March 24, 2006
This book discusses the tyranny of big government. Although some of the reviewers argue that tyranny is not a left-right issue, the fact remains that bigger government usually creates greater potential for abuse. Both the so-called Republicans and Democrats are both pretty much statists these days in favor of big government and this book exposes the rampant abuses of the system that has been slowly put into place here in the U.S.
For example, they call attention to the drug war as a chief source of lost liberties for Americans. The drug war led to asset forfeiture laws which deprive people of property interests without due process of the law. Many of the people who lose property are never even convicted of any drug-related crime. The whole concept of asset forfeiture is a sham whereby, the state can proceed against the property instead of the person and therefore claim that the issue is a civil matter instead of a criminal one. This is important because many of the important rights afforded to criminals do not apply in this case because the proceeding is characterized as a civil action against the property or thing that offends. Yet, the property against which the action is filed belongs to someone and that someone stands to lose a property right or interest but because of legal trickery they are afforded no protections afforded to criminals such as the right to an attorney, the right to a jury trial, and many others.
Also, the civil forfeiture laws lead to police corruption because the police have an interest in seizing property since they get the proceeds from whatever is seized. This book does a good job of exposing how government is everyday infringing more of our individual rights in the name of good causes -- the drug war and all the rest. But, as the maxim states, the road to hell is paved with good intentions.
I wonder if some of the other readers even read the book because they claim that the authors attempt to defend the elite and to me it seems they are doing just the opposite: exposing how the elite has stripped the average citizen of his or her rights in the pursuit of material gain. The book also speaks to the torture of prisoners and other issues that seem to come up repeatedly with the current administration.
on September 26, 2000
I first heard of Paul Craig Roberts back in May when I read one of his thoughtful essays comparing America under Bill Clinton to the Third Reich. His matter-of-fact analysis was rich in specifics and never stooped to over-the top sensationalism. "The Tyranny of Good Intentions," delves further into the same theme-in recent years judicial activists and unelected bureaucrats have steadily chipped away at many of the Constitutions Rights that our founding fathers cherished. Many judicial bedrocks like the necessity of harmful intent have taken a terrible beating during this new era of legalistic chicanery. This multi-tiered usurpation has occurred with the eager approval-or at least the irresponsible indifference--of elected officials at all levels in both political parties.
The work is truly a bipartisan broadside. One of his most cited examples of an over-zealous prosecutor is Rudolph Gulliani. The work cites examples of Supreme Court decisions from the early 1900's that started us down the slippery slope of liberty-infringing policies, and suggests that the push to crack down on crime under Ronald Reagan and George Bush enhanced intrusive tendencies.
With the road paved under the best-laid plans of Reagan and Bush, Roberts and Stratton illustrate how the corrupt Justice Department of Bill Clinton shredded Constitutional protections at a rate unseen in any free country. Waco, Ruby Ridge, and the Elian Gonzalez cases grabbed the headlines, but they reveal those infamous tragedies as the tip of a dangerous ice burg. They detail many fascist actions that generated little media coverage including the murder of millionaire Donald Scott (by California authorities) on specious grounds and the highly suspicious besting death of Kenneth Trentadue in an Oklahoma prison cell. The book also discusses multiple cases were justice was abrogated in less violent ways from Leona Helmsley to Michael Milken to the still pending Microsoft case, unprovoked government intrusion is shown as a rapidly escalating threat.
However, any exploration of this topic seems incomplete without a healthy perusal of the unhealthy war against tobacco companies and gun manufacturers currently being waged by governments at all levels. The authors barely touch on this pernicious trend but do include one terrifying tidbit---"Ralph Nader who is closely tied to these lawsuits, has said that the next ones are alcoholic beverage makers, sugar, fat, and cholesterol-laden food producers, beef producers, makers of fiber-deficient food, X-ray equipment manufacturers, (and) bicycle makers."
With an exigent presidential election looming, this thoughtful disquisition is an essential book for an open-minded voters to read.
on March 21, 2001
This should be a must-read for every conservative or liberal - the fundamental erosion of civil liberties and private property and the surreptitious rewriting of the contract between the government and the governed should scare the bejesus out of everyone across the political spectrum. Unfortunately, while there is an important and powerful book hidden in this prose, the editing is so abysmal that it struggles to break free. Digressions about British coal miners, russian show trials, american zoning, etc, that might have been beneficial if limited to a line or two, are allowed to go on for pages, and distract the reader from the central argument. Although I agree completely with the authors, I found myself able to put the book down repeatedly out of frustration over their meandering style. Grade A for effort, A+ for importance, and a rueful B- for accomplishment
on February 8, 2003
This rather unassuming book is one of great import. When the same book is endorsed by Milton Friedman and Alan Dershowitz on the same page, it is one not to be taken lightly.
The book started off with the cornerstone pieces of the Anglo-Saxon law - mens rea (criminal intent), non-retroactiveness of new laws, presumption of innocence until proven guilty, sanctity of attorney-client privilege, property rights, and went on to cite laws and legal cases, some of the very high-profile, that helped chip away the these cornerstone pieces and made the law no longer a guarantor of constitutional rights. This dangerous practice of eroding the "Right of the Englishman" is, according to the authors, a result of well-intended, but poorly thought-out legislation and over zealous government prosecutors, who were driven by political ambition, pressure of revenue and even personal enrichment.
It is frightening development. It is hard to believe that this country has allowed its cherished legal system to deteriorate to one that, in essence, is no different than that of a police state - one that prosecutors could at will use the full force of the government to break any individual, sometimes by threats, lies and confiscations. Most people will dismiss this notion as alarmist, until they read what this book has explained and chronicled. After 9/11, the Ashcroft regime seeks to greatly enlarge federal powers to fight terrorism, but that inevitably be at the expense of our cherished civil liberty. We should all be vigilant about what is being done. History has taught us that some really bad things that are done with good intentions are very, very hard to undo.
Reading this book forces me to revise my opinion on those who had been vilified by the prosecutors and the media, like Charles Keating, Jr. Leona Hemsley and Michael Milken; as well it dims the much-heralded Rudolph Giuliani legacy. It also reconfirms that damages done by FDR's New Deal - the emergence of the administrative state, and his Court-packing initiative, not to speak of the unleashing of the welfare state.
The presentation of the book, unfortunately, seems to lack clarity and force, and the organization is somewhat loose. There are anecdotes abound, but they are not backed by statistics, and the reader has no idea if the outrageous prosecutorial excesses are 10% of the cases, 1%, or less. The book is otherwise very readable. I will recommend this book if only for the seriousness of the subject matter.
on October 22, 2008
This book should be a must-read for every first-year law student as well as for those in law enforcement at all levels. Roberts and Stratton make the case for how law enforcement and the courts trample the rights of citizens and endanger the public safety, not to mention destroying our founding document, the Constitution of the U.S. Be prepared to get angry at the unfairness dealt to ordinary, law-abiding citizens who cannot possibly know every nuance of every law passed by every community and state in the U.S., let alone the constantly changing federal law. This book will both outrage and inform the ordinary citizen.
Many Americans do not realize that there have been unprecedented inroads into long-established civil liberties in the last 20 years in the United States. The sources of these injustices have been a combination of an irritated electorate, an unchecked Congress siding with a more powerful Executive branch, aggressive use of new theories of prosecution, `show trials' to appease voters,and the corrupting influence of money and power. Basically, what can happen is that when the whole society agrees that enough is enough, we can cede too much power to the authorities who pursue these forms of deviant behavior. The war against drugs has become a model of that potential for abuse.
The Tyranny of Good Intentions is good at noticing these issues, but does an inadequate job of being convincing about the degree and seriousness of the threat. A second weakness is that the book looks at the problem too much from the legal perspective and not enough from the political one. Perhaps the authors should have added someone to their team whose expertise is in the area of political analysis. Basically, this book is designed to preach to the choir, the converted, but will not scare most of those who are very concerned about the problems of drug dealing, income tax evasion, white collar crime, and environmental pollution. The main reason is that the case histories here are a bit too truncated, and the discussions of the cases would have been more convincing if they were more balanced. The points of view of the prosecutors, legislators, and law enforcement officials who are accused by the authors of overreaching are seldom displayed. I graded the book down two stars for these shortcomings. Despite that, I do encourage you to read the book, because you will benefit from the warnings here.
The structure of the book is built around providing the reader with a background on English civil liberties, and their bases in legal history. Next, the authors show the overwhelming power of the state versus the individual in the show trial of Bukharin during the Stalinist regime in the USSR. You will later get some eerie echoes from that show trial in hearing about the prosecutions of someU.S. citizens and corporations. Then a series of chapters look at specific examples where traditional civil liberties have been lost. You will also hear a lot about the theory of utilitarianism (the greatest good for the greatest number should outweigh the rights ofthe few) that Jeremy Bentham expounded, and how that kind of thinking is being employed today.
As an attorney, I found myselfdisagreeing with the authors on many of the cases cited as examples of citizen abuse. For example, I see no fault in the prosecution of Microsoft on antitrust charges. But I also found myself agreeing with the authors on many others. Clearly to me, Exxon, Charles Keating, and Michael Milken did not get their just due from the prosecutorial processes. Public opinion weighed too much in the balance in thesecases. The Leona Helmsley case is also a cautionary tale that one should avoid becoming unpopular. That unpopularity can make anindividual an irresistible target for prosecution, and the results can be overwhelming for the individual.
The proposed solution will surprise you. "Our constitutional system and its precepts havelost the allegiance of the American elites . . . . Without an intellectual rebirth, a revival of constutionalism, there is no hope for American." The authors despair of Congress reasserting its traditional role or of promoting constitutional values until this happens. If correct, that is a sad state of affairs.
I suspectthat the problem is not that severe. Greater publicity about losses of civil liberties can probably turn the tide faster and in a more fundamental way. The cases of the mighty in the book will move some, but the cases of the meek who are crushed will move all. One of the most pernicious legal abuses now are the laws related to drugs. Ifyou are suspected of having aided in drug trafficking, your goods are forfeit. This is true even if you are later found to be innocent of any wrong doing. Only the most wealthy can afford to fight these seizures successfully, and they do not always succeed.
Let me give you an example of what a threat this is. This law has been used to seize cash from people who are reluctant to use banks, as well as people who happened to be holding a single piece of paper currency that had come into contact with cocaine. The latter application is quite a problem for many people, because a significant percentage of used fifty and hundred dollar bills have been handled by those who either sell or buy cocaine. The residue stays with the bills for some time from contact with someone's hand, or from rolling the bill and using it as a "snorting" device. So you could end up having your cash and your car seized because you happened to unknowingly have such a tainted bill in your pocket or purse. I hope someone else will write a much better book on this subject. For although this book is flawed, the problems described here are real.
After you finishreading this book, let me encourage you to read and listen to newsaccounts differently. Ask yourself if use of legal power has provided for fairness for the defendant of the sort that you would like to have for yourself and your family. If it does not, write your newspaper,your congressperson, your senator, and anyone else you can think ofwho is influential. Also consider joining organizations that support civil liberties of a traditional sort. If we all speak up, a consensus against these abuses will be formed, and the abuses will recede.