George Will has a column
in the Washington Post designed to illustrate that federal criminal law is out of control. The column makes a good case, but I think it's a slightly different case from the one Will believes it is. Although the abusive prosecution Will describes could not have come about unless the federal government had indeed become a power-drunk leviathan, the culprit at the bottom of it is the infusion of ideology into criminal law and, in particular, the infusion of Political Correctness.
The case is about Nancy Black, a marine biologist. One of her crew members whistled at a humpback whale to entice it to come closer to the boat. Now this might be considered, if you're sufficiently enraptured by Save the Whales lore, as the "crime" or "harassing a marine mammal," and it drew the attention of NOAA. The story of what has happened to Ms. Black after that is too convoluted to recount here -- read the column -- but suffice it to say that her home was raided and her colleagues have been told by DOJ not to talk to her, lest they too wind up on the wrong end of an indictment.
Will views this as confirmation of Harvey Silvergate's thesis that
...the mad proliferation of federal criminal laws -- which often are too vague to give fair notice of what behavior is proscribed or prescribed -- means that "our normal daily activities expose us to potential prosecution at the whim of a government official." Such laws, which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors
to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes.
There is a lesson here, but it's not precisely the one Will and Silvergate draw. The lesson is less about the size and scope of government per se than about what happens when a particular brand of ideology supplants law.
Because criminals use deceit, stealth and violence, law enforcement has to have considerable power -- enough power to rein them in and bring them to book. The more weapons criminals have, and the more malevolent and reckless they are in deploying them, the more power the rest of us will need to win the battle. That is an unfortunate (and expensive) reality, but it's reality nonetheless. None of us enjoys the sprawl of governmental power -- do you love your TSA screenings? -- but the alternatives are worse.
It's not new that police and prosecutorial power can be abused; we've known that since those things were invented. It's not new that police and prosecutorial power expand as the ambitions and techniques of criminals expand, and that the expansion increases the opportunities for governmental abuse. Nor is it new that power corrupts. What is new is that the corruption so often seems driven by a particular element of prosecutorial thinking -- political correctness. That's what Mr. Will misses. Addressing it is a key part of the solution to the problem he sees.
Sprawling criminal statutes are, to be sure, the necessary backdrop to what is happening to Ms. Black. But the real driving force is PC -- a hodgepodge of supposedly enlightened and "compassionate" liberal causes. As we now see, these causes are to be advanced, not, as always promised, by education (since actual education would be the end of them), but by the snarling threat of jail.
Ms. Black's journey to Kafkaland is what happens when political correctness and its entourage of slogans (here, the slogans of fruitcake environmentalism) take over criminal law. What her case most reminded me of was the Duke lacrosse prosecution, another episode in which political correctness (there, fruitcake feminism combined with racial pandering) brought about the indictment of three Duke lacrosse players (all white and -- even more sinfully -- from well-off families) for a non-existent rape peddled by a drunken stripper.
In Ms. Black's case, the entry of PC ideology into law gets illustrated by the fact that an environmental "offense," if that's the right word, gets pursued to the ends of the earth, far beyond what any non-PC prosecutor could think it's worth to public order. This could not happen unless environmentalism had become a PC Holy Cow -- just as the Duke lacrosse hoax could not have happened unless White Guilt had become a PC Holy Cow. If prosecutors had used traditional, neutral standards to evaluate either case, both would have been dumped in the round file.
Moral of story: Keep politically correct ideology away from criminal law. When we learn this lesson, the hazards of the sprawl of federal criminal law, while still worrisome, will look and be considerably less ominous.