Two phenomena are at work. One is the militarization of domestic law enforcement. In recent years, police departments have widely adopted military tactics, military equipment (armored personnel carriers, flash-bang grenades) — and, sometimes, the mindset of military conquerors rather than domestic peacekeepers.
The other phenomenon is the increasing degree to which civilians are subject to criminal prosecution for noncriminal acts, including exercising the constitutionally protected right to free speech.
Last week, A.J. Marin was arrested in Harrisburg, Pa., for writing in chalk on the sidewalk. Marin was participating in a health care demonstration outside Gov. Tom Corbett’s residence when he wrote, “Governor Corbett has health insurance, we should too.” Authorities charged Marin with writing “a derogatory remark about the governor on the sidewalk.” The horror.
“I broke the law yesterday,” writes George Mason economics professor Alex Tabarrok, “and I probably will break the law tomorrow. Don’t mistake me, I have done nothing wrong. I don’t even know what laws I have broken. … It’s hard for anyone to live today without breaking the law. Doubt me? Have you ever thrown out some junk mail that … was addressed to someone else? That’s a violation of federal law punishable by up to five years in prison.” Tabarrok notes that lawyer Harvey Silverglate thinks the typical American commits “Three Felonies a Day” — the title of Silverglate’s book on the subject.
As The Wall Street Journal has reported, lawmakers in Washington have greatly eroded the notion of mens rea — the principle that you need criminal intent in order to commit a crime. Thanks to a proliferating number of obscure offenses, Americans now resemble the condemned souls in Jonathan Edwards’ “Sinners in the Hands of an Angry God” — spared from perdition only by the temporary forbearance of those who sit in judgment.
“What once might have been considered simply a mistake,” The Journal explains, is now “punishable by jail time.” And as 20-year-old Elizabeth Daly has now learned, you can go to jail even when the person making the mistake wasn’t you.