Wednesday, November 25, 2009

Bowman: Law is a Weapon, Not a Shield

Besides inheriting the English language, Americans also enjoyed the fruits of the legal system developed in Great Britain which, over time, was to be known as a "shield for the innocent," according to the great jurist William Blackstone. This view of law was reflected in our own Declaration of Independence in which the purpose of government was not to lord it over subjects, but rather to protect the God-given rights that people already owned.

Fast forward to 2009 in which very few people in power believe this about law, and nowhere is contempt for the legal principles of Blackstone and Thomas Jefferson more evident than in American law schools. As prosecutors become the living dictators of criminal law, the very concept of law has been perverted to become something other than a "shield" to protect the rights of the innocent. Law today -- and especially federal criminal law -- is nothing more than a weapon that federal prosecutors wield against people supposedly to keep them in line. As the Great Harvey Silverglate has written in his wonderful book, Three Felonies a Day, federal criminal law today more reflects the law of the old Soviet Union with its "crimes of analogy" than anything we inherited from Great Britain more than two centuries ago.

An unfortunate legacy of this terrible development has been the matriculation of federal prosecutors into law schools, where their own perverted views of law are now taught as being morally and legally legitimate. One such person is Frank O. Bowman, a law professor at the University of Missouri. I came upon this man through an interesting article in The New York Times in which the paper noted in a surprised manner that both leftists and conservatives have joined forces to oppose the abuses that federal criminal law has wrought.

Of course, being that the Times served as the main cheerleader for the disgraced Michael B. Nifong, the now-disbarred prosecutor who pursued charges in the infamous Duke Lacrosse Case that he knew were false, it is not surprising to see the "Newspaper of Record" take the side of the prosecutors. They interviewed Bowman, and he clearly did not disappoint:

Some scholars are skeptical about conservatives’ timing and motives, noting that their voices are rising during a Democratic administration and amid demands for accountability for the economic crisis.

“The Justice Department now acts as a kind of counterweight to corporate power,” said Frank O. Bowman, a law professor at the University of Missouri. “On the other side is an alliance between two strands of conservative thinking, the libertarian point of view and the corporate wing of the Republican Party.”

First, and most important, the notion that "corporate power" is equal to the power of the state is laughable. I don't recall any "corporate" forces from Wal-Mart gunning down innocent people (and paying no price) and Wal-Mart does not enjoy the immunity from being punished for criminal acts, as do the people championed by Bowman and his ilk. Corporations cannot engage in home invasions like your friendly police force, and if someone from a corporation guns you down, the killer -- unlike your friendly police protectors -- is likely to be prosecuted.

In fact, Bowman's former employer, the federal government, recently argued in the Pottawattamie case that prosecutors should be absolutely immune from any legal consequences, even when it is clear that they knowingly tried to frame innocent people. Instead, the government argued that no one has a Constitutional right not to be framed.

Second, the view of law being a "counterweight" violates every foundation upon which Anglo-American law was built. This "counterweight" view is a backdoor way of approving the tactics which prosecutors use to gain convictions of innocent people. As Harvey Silverglate has noted, federal criminal law is so abusive and prosecutors are so powerful (there is no "counterweight" to their power, and they are demanding even more power) that innocent people find it in their own best interests to plead guilty to something because the alternative is too terrible.

Third, as I note in an upcoming article on federal criminal law in Regulation Magazine, the very basis for "white collar crime" law is the elimination of the Constitutional protections that we supposedly enjoy, including presumption of innocence, and the establishment of the mens rea principle. As LSU law professor John Baker noted in an article about the "father of white-collar crime laws," Edwin Sutherland, the law specifically targets people for what they are, not for what they do.

(Sutherland and his followers believed that almost all business transactions should be viewed inherently as being "criminal." It is clear that Bowman follows in that tradition.)

As former Supreme Court justice Robert Jackson pointed out in a 1940 speech, federal criminal law is written in a way that permits prosecutors to target and individual, and then look for crimes with which to charge that person. Keep in mind that in 1940, prosecutors did not have the RICO statutes and most of the "fraud" laws that they can bundle into just about anything.

Thus, Bowman and many other law professors of his ilk are arguing that we in reality need to do away with the Constitution -- and the Rule of Law -- altogether. Instead, they want us to depend upon the good will of prosecutors and, at the same time, give them unlimited power over our lives.

No doubt, Bowman believes that he is morally superior to the rest of us and would make a wonderful and benevolent and fair dictator. However, I prefer the words of Lord Acton, who was a far more learned and good man than Bowman ever could hope to be: Power corrupts, and absolute power corrupts absolutely.

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