CRIMES AND LAWS
I'm no lawyer. But this has been on my mind for a very long time, and
yesterday it just came out in words. US Law really does suck because anyone
who knows how to game it is able to do it with impunity. Talk me down.
When it comes to crime, Justice John Roberts thinks milk comes from the
grocery store. The case Roberts ruled on was In re JODY TREMAYNE WAFER ,
and involved a habeas corpus defense by a person charged with cannabis
possession. The defense was based on an assertion that the government failed
to follow due process when it made cannabis a Schedule 1 drug. Roberts ruled
on a series of technicalities, mostly skirting the fundamental assertion by the
defendant on due process grounds.
What Roberts is- and much of legal America are- missing is the connection
between the law and the crime. The law was created to address a crime. That is
why it is called, “Criminal Law”. However, history is full of unjust laws, i.e. laws
that do not have a fundamental crime as its reason to exist. From Jim Crow laws
to civil forfeiture laws to stop and frisk laws to censorship laws, jurists have felt
compelled to honor these laws’ constitutional origins whether they are just or
not. This brings up the question of whether it is the duty of a jurist to solely
interpret the law, or to also struggle to determine how justice is best served. The
mainstream consensus is the former. Jurists commonly rule unjustly, saying the
law ties their hands with respect to justice. How many profoundly sincere
defenses are disallowed in court every day because the law says, “no”?
In criminal law, there must exist a fundamental definition of the word ‘crime’,
and Cornell Law School provides one:
“Crime is behavior, either by act or omission, defined by statutory or common
law as deserving of punishment or penalty.”
Mirriam-Webster dictionary gives two meanings:
1 : an illegal act for which someone can be punished by the government
especially : a gross violation of law
2 : a grave offense especially against morality
The real crime here is in giving the law jurisdiction over the meaning of a
word- ‘crime’- that defines itself. This is not fundamental, any more than the
Doctrine of Discovery is fundamental Indian law- another judicial crime.
A crime is ultimately a behavior (agreement with Cornell LS on that point).
Crimes can exist without laws; so how can the meaning of the word ‘crime’ be
based upon the word, ‘law’? Any law that does not reflect this basic fact, or, as
in the case of the Doctrine of Discovery, obfuscates it, is what should be ruled
unconstitutional. Politically-motivated, unjust laws are commonly emplaced into
government, and the federal cannabis law is also one of those.
Milk (crime) had to exist on the farm before it ever made it to the store (law).
Crimes are not derived from laws. It is the other way around. Diligently worked
Due Process begins at the beginning, and therefore must determine whether an
underlying crime has occurred in order for a law to be applied.
The problem is, then, that there needs to be either a more basic meaning to
the word ‘crime’, or another word must be used in its place. Until this happens,
criminal law is, by definition, fundamentally flawed.
Because of the foregoing, Chief Justice John Roberts, by denying relief in In re
JODY TREMAYNE WAFER, has again done an egregious disservice to the cause
of Justice. The leaders of jurisprudence must make ungrounded laws illegal. In
addition to interpreting the law, Judges must also make a determined effort to
find a basis for it. Otherwise, remedies to injustice are too often absent.
Penalties are “legal”, societal-level crimes; but because they are assaults
against other persons, they are crimes nonetheless. Is it not the ultimate duty of
an honest judge to protect innocent people from civil and criminal punishment?
Should this not be the real motivation behind honest prosecutors’ cases? How
many legal judgements today fail this fundamental test? Jurisprudence has a
heavy responsibility to honor justice over compliance. Again, justice’ meaning is
in the word itself, and it is a word that is misused in courtrooms, legislatures,
and among enforcement groups on a daily basis.
A law is a reaction to a crime, and is a means for a political power outcome
that deters crime. Laws that create crimes attempt to deter non-criminal
behavior. Despite it being unfashionable today, Judges are empowered to make
this distinction. An unconstitutional law is one without a basis in a crime. Before
there were laws, there were crimes. And greedy people who say, “Well, if there’s
no law against it, then I can do it,” are committing crimes and getting away with
it.
