It Is Dangerous to Be Right When the Government Is Wrong

by Andrew P. Napolitano

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  Next among un-punishable offenses is the category of annoyance, boredom, and frustration. To be fair, the mental states provoked by loud, boisterous, and incessantly talking seatmates or the two women with high-pitched, nasally voices can be almost as painful and difficult to tolerate as the examples from other categories. But nonetheless, there is no natural right to be free from screeching voices.

  And finally, fear, resentment, humiliation, and anger can be the reasonable reaction to the hand grenade–waving, rubber knife–brandishing, swastika–wearing teenagers who deliberately seek to cause these unwanted emotions. In a way, these behaviors are the most offensive and disturbing of the categories. This type of conduct induces sentiments that are sometimes the most difficult to handle and control, particularly to those who are part of the targeted group—on Feinberg’s bus in particular, Catholics, blacks, Jews, and Hispanics. Yet again, it is clear that these thoughts cannot be criminalized, so why could simply making others aware that they possess those thoughts be any different, and more deserving of punishment? No thoughts can morally be criminalized. After all, a member of any ethnic or religious group certainly knows that there are those out there who harbor ill will toward him. Why is it any more “harmful” to know that one of those individuals happens to be riding the same bus as he is? Moreover, once again, this offense can be avoided. The offended individual may look away, or take a deep breath, signal the bus driver to stop, and get off the bus.

  But Is Refraining from Punishing Offense Really Worth It?

  At the age of twenty, Osvaldo Hernandez was arrested and prosecuted for possession of a small pistol, a felony under New York state law. Hernandez, who grew up in a dangerous neighborhood in Queens, New York, claimed the handgun was for self-defense. Yet, despite his plea, the court convicted and sentenced him to a year in jail on Rikers Island. After eight months, the government released Hernandez on good behavior, after which he enlisted in the United States Army.

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  After three years with the 82nd Airborne Division, Hernandez was deployed to Afghanistan, as a member of an elite paratrooper group, and served a fifteen-month tour overseas. Upon completion of his deployment to Afghanistan, Hernandez sought to become a member of the New York City Police Department (NYPD). However, his previous felony conviction prohibited him from joining the NYPD because of the department’s blanket prohibition against hiring individuals with prior felony convictions. Fortunately, on December 29th 2009, New York Governor David Paterson pardoned Hernandez’s felony conviction in order for him to achieve his lifelong dream of becoming a police officer. What was Hernandez’s response to the pardon? He thanked the governor for “giving [him] back his life.”7 In what kind of world can a man serve his country abroad as a soldier but domestically be unable to defend its citizens as a police officer without a court battle? Could there possibly be a legitimate justification for taking Osvaldo Hernandez’s lifelong dream away from him on the grounds that he possessed a dangerous weapon for self-defense in a dangerous neighborhood? Stated differently, did his mere possession of the pistol harm anyone? No.

  Let us return to Professor Feinberg’s bus again. Note that you, the passenger, have several options for avoiding the offensive behavior: You could look away, get off the bus, or lobby your local government to ban or to criminalize those particular types of conduct. Indeed, one might sensibly wonder why it is that passengers should have to get another bus in order to avoid such repulsive actions. After all, is not freedom about the ability to choose one’s profession, start a family, and worship the God of one’s choosing, and not eating live cockroaches and rotten eggs on a public bus? In other words, aren’t there certain types of offenses which don’t deserve protection as fundamental liberties, at least when compared with the inconvenience required to avoid them? Are you justified in demanding legal protection at the cost of the mourners’, the teenagers’, and the picnicker’s liberty?

  Most fundamentally, the criminalization of victimless offenses rests upon the doctrine of legal paternalism. Under the legal paternalism concept, the government views itself, and not us, as in the best position to regulate our daily conduct. Thus, where this concept prevails, like in New York City, for example, we have the Nanny State (too much salt in your food, too much trans fat in your diet, wasteful light bulbs in your lamps, etc.). However, this directly violates the Natural Law principle that no government can be above the individual, since a government is a human creation, and the creature is always subservient to its creator. Additionally, the content of those laws themselves will be the product of the moral tides of the day, and not immutable Natural Law principles which inhere in the order of things.

  Moreover, to illustrate the practical impropriety of legal paternalism, consider criminal prohibitions on various forms of gambling, for example. At what point in time did the government decide that it is in the best position to tell you how to handle your finances and restrict your ability to gamble? Was it in September of 2007, when our nation’s national debt began to rise on an average of $4.13 billion per day?8 If you were to mimic the government’s handling of its finances, how balanced would your budget be?

  The central evils of criminalizing offensive behavior, however, are the exaltation of the state over the individual and the use of this exaltation as the primary mechanism to assert control over persons. By limiting what you can or cannot do, the government’s criminalization of harmless conduct restricts liberty and freedom on a daily and constant basis. At any point in time, it is astonishing how many criminal codes we are subject to. You want to jaywalk to make your dentist appointment on time? You can’t. You want to sit on a park bench and eat your dinner after sunset? You can’t. You want to ride your bike to the grocery store without lugging along a helmet? You can’t. You want to skateboard in front of the courthouse? You can’t. You want to bet money with your favorite bookie on your favorite baseball team? You can’t. You want to buy a drug not approved by the FDA? You can’t. You want to cool off with a beer on the beach? You can’t. You want to talk on your cell phone while driving safely? You can’t. You want to paint the fire hydrant (on your property) in front of your house green to match the grass? You can’t. You are on an empty subway car, and you want to put your packages on the seat next to you. You can’t. You want to collect rainwater on your own property for your own consumption? You can’t. The bottom line is every law, regulation, rule, and ordinance made by the state affects your behavior in some way, and the government has more control over you than you could ever imagine. And there can be no more effective way of controlling your moral and behavioral standards than by threatening to brand you with society’s most powerful stigma, as a criminal, thus destroying life projects, careers, and family ties. Everything that the government does either compels or restrains, under the threat of force. Government is the negation of liberty.

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  Moreover, the aggregation of control may seem like a small issue today, but could end up being a larger and more invasive issue tomorrow. With the lengthening and growing complexity of the criminal code, the criminalization of the subjective whims and sensibilities of the Congress may become status quo. And then we will never know what it feels like to truly be free. In this way, the government is also able to aggrandize power in itself by increasingly controlling the lives of its citizens.

  Finally, the simplicity and ease of avoiding the problem without criminalizing conduct cannot be overstated. Justice John Marshall Harlan, writing for the Supreme Court in Cohen v. California (1971), discussed just such a solution.9 In that case, the defendant wore a jacket bearing the words “F—the Draft” inside a Los Angeles courthouse. While the police and the prosecutors were clearly offended by the display, the Supreme Court found in favor of a Vietnam War protester’s First Amendment right to express disfavor of the draft. Justice Harlan’s response to the offended individuals? He suggested the observers “effectively avoid further bombardment of their sensibilities simply by aver
ting their eyes.” Or, as discussed before, they could simply catch the next bus.

  Understood in this light, the push to criminalize a certain activity can be understood as an application of a recurrent theme in this book: Individuals so often prefer to have the state, and not themselves, solve their problems for them because doing so is much more “convenient,” even if it comes at the expense of liberty. Further compounding this problem is the fact that those from whom they demand legal protection are often the least respected, most misunderstood, and hated members of society. Moreover, today’s controversy is often tomorrow’s mainstream culture. How soon we forget the initial public backlash to the music of the Beatles, or even contemporary pushes to ban Harry Potter (for teaching children about witchcraft). In sum, certainly it is inconvenient to carry around earplugs or catch the next bus, but we simply cannot sacrifice liberty for the sake of convenience. Or even worse, sacrifice another’s liberty for the sake of our own convenience.

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  What Did the Founders Have to Say?

  Given these dangers of profligate criminalization, it should come as no surprise that the Founders enshrined an extraordinarily limited ability for the federal government to make crimes. Article I, Section 8 provides that Congress can only punish treason, “counterfeiting the Securities and current Coin of the United States,” “Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Moreover, Thomas Jefferson famously wrote that all “acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution are altogether void and of no force.”10 In clear contravention of these principles, the federal government is currently able to criminalize whatever it wishes.

  As an example, the Supreme Court held in Gonzales v. Raich (2005) that Congress’s constitutional authorization to regulate interstate commerce also grants it the power to criminalize homegrown medicinal marijuana; that is, marijuana not procured through any commercial transaction. In her dissent, Justice O’Connor noted the impropriety of such a law:

  Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently.11

  Thus, ultimately the government’s criminalization of harmless or merely offensive conduct not only deprives individuals of their natural right to choose private behavior; it also allows the government to acquire more power than was granted to it by the Constitution.

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  In sum, the answer to the question posed earlier about NYPD Officer Osvaldo Hernandez is: No. There cannot be a legitimate justification for cases such as Osvaldo Hernandez’s. In fact, his story precisely illustrates the evil and tyranny of criminalizing harmless, victimless behavior! We must demand that governments abide by the Natural Law if we are to prevent the government from controlling our lives, aggrandizing power to itself, and at the end of the day, ourselves from sacrificing liberty for convenience.

  Private Harm versus Public Harm

  We have discussed up to this point the difference between offense and harm, and found that only harms are eligible for criminalization under a governmental scheme that protects natural rights. However, there is an additional requirement which must be satisfied before harm can be criminalized: It must be a harm against the general public, and not just a private individual. Thus, although it should be a crime to steal a car, it is not a crime if your dog urinates on a neighbor’s bush, thus killing it. We can therefore say that being a harm is a necessary prerequisite for criminalization, but it is not sufficient. But how can we distinguish between these public and private harms?

  Before delving into what constitutes harm against the public, it is helpful to review briefly the difference between crimes and torts. Our legal system can be divided into two principal parts: The civil law and the criminal law. The civil law addresses torts and contractual relations: Breaches of a duty owed by one individual to another individual. By duty owed to an individual, it is meant that someone is obligated not to act in a certain way as to a particular person or entity, such as a business. Thus, I owe a duty to you not to ruin your bush by letting my dog urinate on it. When that duty is breached, the harmed individual has what is called a cause of action, or the ability to pursue a remedy for that wrong in a court of law. In the particular case of the dog and the bush, the remedy would be monetary compensation equal to the value of the bush that was destroyed, no more and no less.

  By contrast, the criminal law involves breaches of duties owed not just to an individual, but to all individuals; we all owe a duty to society not to attack innocent civilians wantonly, for example. When this duty to the general public has been breached, then the general public, in the form of the government, can bring those alleged to have perpetrated the breach to court and pursue not compensation, but actual punishment. This is, if you have ever wondered, why criminal cases have names such as State v. Rockwell or United States v. Rothbard. By contrast, civil cases have names such as Chodorov v. Von Mises or Napolitano v. Beck.

  In order to understand this difference better, think of a child who recklessly throws a baseball into a neighbor’s window, thus causing $200 worth of damage. The neighbor should, of course, be able to recover the $200 to replace the window, and thus be “made whole.” The neighbor has an interest in recovering $200 to undo the harm that has been committed against him, no more and no less. This can be considered the civil component of the child’s harm. However, because the action was so reckless, the “authority figures” in the child’s life (i.e., his parents) may be justified in punishing the child by requiring him to mow the lawn every Saturday for the next four months. Why? Because the entire neighborhood benefits from, and has a legitimate interest in, having the child taught a lesson about responsibility and respect for others’ property. This represents the criminal component of the child’s harm.

  Note in particular that this punishment, although arising from the same action of breaking a window, can be considered entirely different from the $200 compensation to the neighbor, as can the reasons for imposing those separate remedial measures upon the child. It would make no sense to require the child, in addition to paying the neighbor $200, also to mow the neighbor’s lawn; mowing the lawn is intended to teach the child a lesson, rather than compensate the neighbor for his wrong. If the neighbor could have his lawn mowed in addition to receiving $200, then in effect, he is receiving something he is not entitled to, and would actually become enriched by the whole ordeal. Moreover, it would be equally nonsensical to give the $200 to the child’s parents, but not the neighbor; then the parents (i.e., the government) are receiving something they are not entitled to—the value of the window—and the neighbor is left $200 in the hole. Thus, there is a compelling reason to have two separate systems, a civil and a criminal, which serve two very distinct purposes.

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  So what then can be considered a mere tort, and what rises to the level of a crime, which can be justifiably punished by the government? That is a question which has vexed legal scholars for as long as there have been two separate systems. To be considered a tort, I would argue that the conduct must be a violation of the Natural Law, and thus an actual harm. The criminal law, however, involves a special breed of violations of the Natural Law, where society itself is justified in punishing the wrongdoer, as opposed to just giving the harmed individual a right to recover damages. Society is justified in punishing a wrongdoer when it has a compelling interest in (1) deterring future crime, (2) rehabilitating the individual, or (3) incapacitating the individual from committing further wrongs against others. Unless at least one of these requirements is convincingly met, then punishment is completely unwarranted, and the government is intermeddling in an essentially private civil matter between two or more persons. Recall that we stated that the purpose
of the criminal law is to safeguard our liberties: These requirements ensure that the criminal law is not imposing needless or arbitrary punishment, and is actually serving that one true purpose.

  As for deterrence, there must be a need to prevent future harms by imposing penalties which discourage subsequent misconduct. Recall the child who broke his neighbor’s window: We can agree that errant children pose a significant risk of doing further property damage, and thus the entire neighborhood is justified in discouraging them by imposing a penalty. When the child learns that he will be forced to mow his parents’ lawn every Saturday for four months, he is much less likely to break other windows in the future. Similarly, when a thief steals and resells a car, if he was only required to repay the market value of the stolen car, then he would be no worse off as a result of having committed the crime, and thus have no incentive not to continue to steal cars. Moreover, provided he can resell each car before he is caught, and assuming he will only be caught a fraction of the time, he will actually be making a net profit off of a criminal career. Thus, there it is a social necessity that the government punish him in order to deter future theft.

  As for rehabilitation, requiring the child to mow lawns can not only deter future crime, but also teach the child the error of his ways. By having his Saturdays “stolen” from him, he can experience for himself what it is like to be the victim of crime. Thus, by being brought to justice, he is more likely to grow up to become a healthy individual who will not continue to destroy property. Michael S. Moore, a professor of law at the University of Illinois, notes that the proper ideal of rehabilitation is to “make criminals safe to return to the streets. This sort of rehabilitative theory justifies punishment, not by appeal to how much better off criminals will be at the end of the process, but rather by how much better off all of us will be if ‘treatment’ is completed because the streets will be much safer.”12