March to Martial Law

WHAT IS PLUTO-WHAT IS CRIME?  IS THERE DIFFERENCE?  (BEFORE NIXON, part 2)

Dennis L. Blewitt, J.D., Nov. 2016

During the past four decades, I have studied the origins and development of law from Roman times until the present.  Additionally, I have studied criminology, both at the undergraduate and graduate level.  I edited a nationally recognized law school news journal. I was on a committee that drafted and graded the criminal law question on the bar exam.  I have chronicled the changes in law and society for five decades and am as confused and fearful, as the citizenry.  I like to think that my fear, though is rational, but perhaps not.

          I noticed a change in the view and interpretation of law during the Viet Nam era and have been watching that change since then.  My concentration was on crime and the Constitution, formed by centuries of precedent and logical development.  At least, I thought sp.  But, now I don’t know.  I truly believe that there is no longer such thing as precedent or law.  There is arbitrary exercise of power by a small group who could care less about the nature of law, but are jealously guarding their power with unprecedented arrogance, selfishness, ignorance and self-righteousness.

          I learned that criminal law was not as concerned with an act as with the actor.  That is because law, as we know had its origins in the ecclesiastic training.  Lawyers were priests who studied law later.  In England, where most of our law came from, law was formulated and transmitted through buildings clustered around the Temple Church, the headquarters of the Knights Templar, where even today barristers learn in Inner and Middle Temple Inns of Court.  Law was a developmental process, not a body of knowledge.  Most of the law dealt with property and revenue and injuries to people known as torts.  A very small percentage dealt with matters that pissed off the king or queen known as crimes.  Crimes had nothing to do with individuals; it was entirely between the sovereign and the subject.  If individuals were wronged or harmed, their remedy was to file a lawsuit.  Of course, there was a time when filing a lawsuit was much cheaper than today.  That was also in a time where most court business dealt with crimes that caused injuries to people and not that dealt with contraband. 

          The essence of crime was the determination of whether or not the accused was a good guy or a bad guy.  The act defined the crime and the intent defined the criminal.  To commit a crime, the actor had to have a specific intent.  There had to be both an act and an intent, without which would not be a crime. No intent, no crime.   This was later modified with the introduction of the misdemeanor.  Crimes were considered felonious if intended to cause a specific result.  If intent were lacking, but there was some sort of bad guy element, it was a misdemeanor, generally subject to a fine, stocks or short term in the goal.  In other words, crimes were classified as bad in themselves, (Malum in Se), or bad because someone in power said so, (Malum Prohibitum).  To keep the sovereign from abusing power, a contractual relationship evolved, based upon "Magna Carta."  In the U.S., because we, the people are the sovereign, crimes are acts that affect the society, which is also the sovereign.  Later, as bureaucracies developed, and some activities were in need of regulation, but not of great concern to the sovereign, regulatory infractions came into existence.  But, as bureaucracies grew, so did infractions.  This was accelerated by bureaucratic empire building into the behemoth existing today.

          Enter the politicians, Nixon, Ehrlichman, Mitchel, et al.  They discovered that fear won elections and drugs scared parents.  Long hair scared the shit out of parents, who had struggled to give their children what the parents didn’t have during the depression.  Many draft and war protesters smoked marijuana and the long hair pissed off parents who tried to live the American dream after WWII.  The Administration dreamt up ways to gain control over crime, which had been a local matter until then.  Through propaganda, TV, and other devises, the drug war was launched.  The obsession with crime began.  Fear reigned supreme.

          Before Nixon, it was accepted that the Government, wasn’t supposed to make people safe. That was a local matter. Local police were solving crimes.  The Government, I was taught in law school, had no police power.  Nixon changed that.

          It was obvious to officials that great power existed with ability to interpret and enforce laws.  Power could be enhanced with fear. National interest groups were formed to consolidate this power and wield it based on fear.  There was the DA’s association, the AG association, FBI and other agency associations.  None of these organizations advanced the view that the Constitution was the supreme law of the land.  They portrayed the Constitution as an obsolete anachronism standing in the way of effective policing.  These protectors of the citizenry morphed into a big protection racket which would become the envy of any Mafia group in the world.

          Police started to view their function as the final arbiter on crime.  They, although untrained and essentially ignorant of social, economic or psychological factors in crime, believed that the sole purpose of policing was to apprehend a suspect and keep him locked up.  They began to lobby against the centuries long tradition of release of accused on bond, and complained to the press that they worked their asses off to apprehend criminals to only have them let loose on society.  Although they took oaths to protect the Constitution, they dreamt up ways to circumvent that oath.  They also resented the rules that prohibited torture and beating the shit out of suspects to get confessions.  The concept restraint on searches and seizures were viewed as impediments.  They spread that ignorance, and government lawyers, following their career aggrandizement, joined in, although they knew better.  Jobs and advancement were more important than right and wrong.

          As politicians discovered how powerful fear and the crime issue were, more legislation was promoted to shift power to the administrative branch, particularly prosecutors.  Victim programs were invented and directed by prosecutors.  Prosecutors lost sight of their traditional role of assessing what was beneficial to society and myopically viewed their constituency as alleged victims and the police establishment.  Them versus us was the result.  Lawyers, trained to analyze and solve problem were now trained to administer.  The system morphed from common law to something else, resembling a Napoleonic code. 

          Prosecutors, many of whom had been part time and had small private practices in addition to prosecuting cases, became full time specialists, losing contact with the rank and file public.  Efficiency flourished, wisdom extinguished.  The class war had begun.  Judges were rated on efficiency, not fairness.  Emphasis was not on balancing interests, but upon punishing and incarceration.  Prison populations increased by a multiplier of ten in 4 decades to almost 3,000,000.  65% of Black America was incarcerated, on bail or under court supervision.  instead of educating the people, unscrupulous prosecutors took public stances on law and order making Nixon look like a progressive.  The concocted drug war changed the face of law and abolished the concept of justice as we knew it.  Justice was no longer just, it was punitive.  As John Ehrlichman finally admitted,

"You want to know what this was really all about?" Ehrlichman bluntly asked Baum of the war on drugs. "The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did."

In short order, rules of evidence were changed to allow more flimsy presentations, the element of criminal intent was changed to general intent for most felonies, blurring the distinction between felonies and misdemeanors, the line between civil wrongs and crimes became indistinguishable.  Victim groups, known to personal injury lawyers as "groaners" became empowered to set policy.  Professional prosecutors became more focused upon pandering to the police and victims than concerning themselves with the society in general.  Various programs were funded through legislation, controlled by prosecutors.  And finally, confiscation and seizure laws made the police establishment independent of the legislative branch of government. 

When I mention this change to young lawyers, they all express the opinion that I am crazy.  Me and the rest of the industrialized world.  The Arab world and other fascists regimes share this view of justice. 

Additionally, the judiciary, spawned from privilege and the rulers, distrusting the great unwashed peasantry, has steadfastly crusaded to abolish jury trials, or at least limit them.  Juries, contrary to common law, are told that they can only judge facts and not circumstances and decide what is just.  Therefore, there is no input from the people on laws.  If an accused did an act, he was guilty, no matter the intention, reason, or fairness of the law.  An important check or balance has been eliminated, in favor of expediency and sound business principles.  After all, juries are inefficient and the juries aren’t trained to make decisions.  They just reflect the views of the citizenry which is viewed as ignorant and crude.

So, prodded by business concepts such as management by objectives, streamlining procedures, and eliminating any feedback loop, we have created a dictator’s dream, and, like the populace, at the time of Caesar, must believe and count on the fact that "Brutus is an honorable man," and will not take advantage of the power given by a gullible public. Like the early Romans, we are entertained by gladiator events and distracted from the harm the rulers are doing.  As long as we are fearful, and we resent taxes, we can be looted by business, stealing through privatization of government, be poisoned by air and water, and have our bridges collapse on us, spawning an ignorant population at each other’s throats rather than existing in a society.