Reynolds: You are probably breaking the law right now
When lawmakers don't even know how many laws exist, how can citizens be expected to follow them?
Ignorance of the law, we are often told, is no excuse. "Every man is presumed to know the law," says a long-established legal aphorism. And if you are charged with a crime, you would be well advised to rely on some other defense than "I had no idea that was illegal."
But not everybody favors this state of affairs. While a century or two ago nearly all crime was traditional common-law crime — rape, murder, theft and other things that pretty much everyone should know are bad — nowadays we face all sorts of "regulatory crimes" in which intuitions of right and wrong play no role, but for which the penalties are high.
If you walk down the sidewalk, pick up a pretty feather, and take it home, you could be a felon — if it happens to be a bald eagle feather. Bald eagles are plentiful now, and were taken off the endangered species list years ago, but the federal law making possession of them a crime for most people is still on the books, and federal agents are even infiltrating some Native-American powwows in order to find and arrest people. (And feathers from lesser-known birds, like the red-tailed hawk are also covered). Other examples abound, from getting lost in a storm and snowmobiling on the wrong bit of federal land, to diverting storm sewer water around a building.
"Regulatory crimes" of this sort are incredibly numerous and a category that is growing quickly. They are the ones likely to trap unwary individuals into being felons without knowing it. That is why Michael Cottone, in a just-published Tennessee Law Review article, suggests that maybe the old presumption that individuals know the law is outdated, unfair and maybe even unconstitutional. "Tellingly," he writes, "no exact count of the number of federal statutes that impose criminal sanctions has ever been given, but estimates from the last 15 years range from 3,600 to approximately 4,500." Meanwhile, according to recent congressional testimony, the number of federal regulations (enacted by administrative agencies under loose authority from Congress) carrying criminal penalties may be as many as 300,000.
And it gets worse. While the old-fashioned common law crimes typically required a culpable mental state — you had to realize you were doing something wrong — the regulatory crimes generally don't require any knowledge that you're breaking the law. This seems quite unfair. As Cottone asks, "How can people be expected to know all the laws governing their conduct when no one even knows exactly how many criminal laws exist?"
Of course, we may hope that prosecutorial discretion will save us: Just explain to the nice prosecutor that we meant no harm, and violated the law by accident, and he or she will drop the charges and tell us to be more careful next time. And sometimes things work that way. But other times, the prosecutors are out to get you for your politics, your ethnicity, or just in order to fulfill a quota, in which case you will hear that the law is the law, and that ignorance is no excuse. (Amusingly, government officials who break the law do get to plead ignorance and good intentions, under the doctrine of good faith "qualified immunity." Just not us proles.)
To solve this problem we need for judges to abandon the presumption that people know the law, at least where regulatory crimes are concerned, and require some proof that the accused knew or should reasonably have known that his conduct was illegal. Alternatively, Congress should adopt legislation requiring such proof. (And I would favor allowing defendants in any action brought by the federal government — civil or criminal — to have the option of arguing to the jury that the government's action against them is unfair or biased, with the charges dropped and legal fees being charged to the government if the jury agrees.)
Under the vagueness doctrine, a law is void if a person of reasonable intelligence would have to guess at its meaning, because it would be unfair to punish someone for violating a law that cannot be understood. It seems just as unfair to punish people for violating a law that they couldn't reasonably be expected to know about.
Law that can't be known is no law at all. If we wish to remain a nation of laws, Congress and the courts need to address this problem, before it's too late.
Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself.
http://www.usatoday.com/story/opinion/2015/03/29/crime-law-criminal-unfair-column/70630978/
Texas Bill Would Bar Physicians From Talking Guns With Patients
If one Texas lawmaker’s bill is passed, patients may have a few less questions to answer at the doctor’s office.
Stewart Spitzer (R-TX) has authored a bill which would essentially bar doctors from talking about guns with their patients. House Bill 2823 was introduced March 16th and not only prohibits doctors from asking if there are guns in the household, but also recommends doctors who continue to talk to patients about firearms be punished.
“Pediatricians are asking children away from their parents, ‘Do you have guns in your house?’ and then reporting this on the electronic health records, and then the federal government, frankly, has access to who has guns and who doesn’t,” Spitzer said in a recent interview about the proposed legislation. He said he experienced the phenomenon firsthand when he took his daughter to the doctor, who asked her whether there were any guns in the house.
While HB2823 has some parents breathing a sigh or relief, the medical community has had a far less enthusiastic reaction.
“We, as physicians, ask all sorts of questions—about bike helmets and seat belts and swimming pool hazards, dangerous chemicals in the home, sexual behaviors, domestic violence. I could go on and on,” Gary Floyd, a Fort Worth pediatrician and board member of the Texas Medical Association, in an interview with the Texas Tribune.
While the bill would allow doctors to discuss guns with patients deemed suicidal, Spitzer says that in most cases discussions about firearms are “not appropriate.” Spitzer, a surgeon, said he wanted to make sure that doctors “have the right not to ask that.”
Doctors are currently reporting who has access to guns and who doesn’t based on patient answers to medical questionnaires. I teach my children to never answer any questions pertaining to our household when I am not present, but with the feds wanting to weigh children at daycare facilities and public schools already dictating what foods children should eat, we need to take every opportunity we can to eliminate the government’s reach into our homes. HB2823 is a step in the right direction, but we should all speak to our children about keeping our families’ business private and out of the government’s intrusive reach into our parental rights.
http://bearingarms.com/texas-bill-ban-pediatricians-talking-guns-patients/
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