What do we mean by liberty, what does it mean to be free? We discussed how one’s understanding of liberty will impact their definition at Understanding Liberty – Negative and Positive and Liberty vs Security – Watch Your Language.
However, there is one aspect that seems fairly basic, not to mention obvious, and that is simply to be free. Free from constraint, free to move, free to act, free from control by another. Unfortunately, there are too many ways we have lost our liberty that many don’t even realize. But, just about anyone will recognize the fundamental impact on liberty when we envision cops, cuffs, cells.
We lose our freedom when the state says we are criminals and then treats us that way. They lock us up, levy fines, strip us of certain rights and inflict all manner of other penalties as a consequence of our criminal status. At first blush, many of us would say, well duh, of course. That’s what the government should do, that’s their job, that’s why they exist.
There is one problem with accepting that line of thinking too quickly or too completely. And, it is no small thing. Who defines criminality? Who gets to say what is or is not a crime? That’s actually Part A of this idea with Part B being the punishment meted out for a crime. We should be concerned not only with a certain activity being labeled a crime but also the type and degree of penalty.Who defines criminality? Who gets to say what is or is not a crime? We should be concerned not only with a certain activity being labeled a crime but also the type and degree of penalty. Click To Tweet
Criminalization is Out of Control
Both are out of control. The escalation of laws on the books has led to the Overcriminalizing of America. That, in and of itself, should trouble us but the penalties can be even more indicative of government’s contempt for a fair and free society.
Following, we quote from a forum on the growing threat of federal criminal law. Note, this was almost a decade ago. Now think about how much things have changed in the past ten years. If the situation was as bad as it was back then, how much worse is it now?
“An average, busy professional gets up in the morning, gets the kids to school, goes to work, uses the telephone or e-mail, has meetings, works on a prospectus or bank loan, goes home, puts the kids to bed, has dinner, reads the newspaper, goes to sleep, and has no idea that, in the course of that day, he or she has very likely committed three felonies. Three felonies that some ambitious, creative prosecutor can pick out from that day’s activities and put into an indictment…
“Martha Stewart had one count in her indictment, which charged that when she was under investigation for insider trading she had a press conference in which she released a statement saying she was not guilty of insider trading. So, in addition to indicting her for false statement to the Feds, they indicted her for falsely denying her guilt at a press conference. In other words, her crime was her failure to make an abject plea of guilty on national television, in front of the entire press, when asked about whether she had committed insider trading fraud. We’re living in a world that’s a mixture of Orwell and Kafka.”
“It is my unhappy responsibility to inform you that things are even worse than Harvey Silverglate says.
“But let me back up and ask a basic question. What do we want from our criminal justice system? Boiled down, we want the government to have enough power to identify and remove criminals from peaceful civil society, but not so much power that it oppresses the rest of us. But that seems to be what is happening today.
“The power wielded by police and prosecutors is immense. We have to remember that all it takes is one raid on a home or a business, one high profile arrest, or an indictment that’s announced on the steps of a courthouse, and a person’s life can be changed forever. Reputation gone. Jobs gone. Friends gone. And that’s even before one gets the opportunity to defend himself in a court of law. And once you find out how much it’s going to cost you to defend yourself in a court these days, you’ll find that you’re facing financial ruin. Retirement savings gone. Children’s college fund gone. And, most likely, house gone.”
We earnestly encourage you to read this in full at The Criminalization of Almost Everything.