WHAT HAS CHANGED
WHO’S THE REAL CRIMINAL?
IT ALL DEPENDS UPON THE POWER TO DEFINE.
DENNIS L. BLEWITT, J. D., May 2016
WHEN I finished law school, there still was stability in the law. There were century old definitions, concepts and principles. There was a respect for precedent. Law was methodology, not a body of knowledge. There were fairly clear lines that defined crime, which developed over centuries. I started in a time of social change and challenge to concepts and ideas. Power was up for grabs. The rulers had divided the population along color lines, class lines and gender lines. But these divisions were being challenged. Loyalty oaths were attacked, the selective service was attacked, separate but equal schools were attacked and the new generation didn’t know their place. They were restless and questioned authority.
All wrongs weren’t criminal. A person had to intend to be a criminal to commit a crime. However, there were lots of harmful screw ups; ones that hurt others because of recklessness or lack caution. These people weren’t then considered criminal. Yet. But, to get control of thoughts and deeds, the regime believed that more power must be exercised. The people couldn’t be trusted to govern themselves. The law was called upon for discipline and to maintain the status quo. The new generation preached love and the old preached hate. The new wanted change, the old wanted the status quo and stability. Not only was there a war in SE Asia, but there was a cultural war at home. One that was viewed as a matter of life and death by the old guard. Rather than try to understand, force was the weapon of choice, and the war on drugs was the battle ground. The war kept the rabble paranoid, fractured and incapable of coordinated social action. A casualty of that war was the abolition of common law, and the implementation of various degrees of Civil, or Napoleonic law. Power was taken from the people and instilled in the rulers. Debate was stifled and simple mindedness prevailed. If there was a hurt, there was a punishment.
Causation had been defined as intent, now it was equated with knowledge. Defenses dating back centuries which were clear now became confused and blurred. “I didn’t do it, I didn’t mean to do it, it wasn’t illegal to do it, and, the devil made me do it” were the only defenses to crime. Common law held that the act wasn’t relevant. That stopped being a factor with the Druids. What mattered was what was in the persons “soul” or heart. Was he a bad guy or a screw up? Only bad guys were criminals. Crime was behavior that concerned the state and not individuals. Criminal law could not be used for personal gain or revenge, if harm occurred, of consideration or caring. There was a whole area of the law that dealt with these problems. It was not criminal law. However, without intent, there may be grounds for a lawsuit, but not for a prosecution.
Then things started to get blurred. The population wasn’t responding to things in predictable ways. Young people avoided what was considered their duty. They avoid the draft and protested war. Races started to demand equality. Gender equality was next. The powerful took advantage of the unrest to dilute the labor pool and subjugate populations to lower wages. Standard of living declined along with the perceived dominance of the world by the U.S. Law no longer was the exemplar of the culture, through mores, folkways, taboos and customs. Various groups vied for power to impose definitions upon the public. Common law was considered inconvenient and unfair. Power was up for grabs and for sale. The war on drugs was the perfect vehicle to keep the youths, minorities and dissidents under control.
When I started, common law was the law of the land in a substantial part of the English speaking world. It was the reflection of the people. It existed by consensus. Consensus gave it legitimacy. Power was exercised from the bottom up. “with consent of the governed.” Most of the rest of the world had law based upon recognized or forced power from the top down, called Napoleonic, Roman or Civil Law. It had worked well for centuries until some leaders got greedy and power hungry. Some also got frustrated with the inefficiency of Government and, with the salad bowl concept rather than mixing bowl, definitions were up for grabs.
There have been many definitions of law, government, etc., however most deal with power and who yields it and who is subject to it. Is the subjugation voluntary or not? Where does the power come from? How is it used? The main difference between the two system can be defined in terms of power. In Common Law system, power depends upon the consent of the population. Rulers don’t remain rulers if the people don’t agree. A Napoleonic system has power at the top, going down to the people. It has many forms, the most extreme being Fascism, National Socialism, Stalinism and martial law. When people are fearful, unscrupulous politicians wrest power from the people and concentrate it for their own benefit. That happened in the U. S.
Conservative Presidents wanted power and were afraid of change and of Communists. Younger people had experienced enough duck and cover, paranoia, cold war suspicion and adopted the motto of Mad Magazine, “Quid, me vexare?” They reasoned that if a bomb was going to fall, there wasn’t much they could do about it, so why worry about it. Live, love, and be free was the password of passage.
Indoctrinated by fear of communism, the leaders were convinced that this change in beliefs of the young was inspired by communists. Reds were behind civil rights demands, anti-war demonstrations, draft-card burnings, riots, student protests, and fluoridation. The reds were behind everything. But, we were saved by a president who identified the problem as the young and minorities, led by reds, who needed to be controlled. A perfect way was devised to do this. Drugs were associated with protest and long hair with draft resistance, and vice versa. Our president’s men decided that the situation could be controlled by criminalizing drugs, instead of making it a tax evasion matter which it was considered previously. This policy was embraced by the older citizens who were fearful of change. The propaganda machine went into operation and the powers that be started marketing fear like some companies marketed soap.
However, the rulers were cognizant of the perilous position they were in. So, the legal system had to be changed. Power needed to be concentrated. This was easy to do with a congress afraid to declare war in Viet Nam and left it up to the Executive branch.
Without opposition, the system started to be changed into a Napoleonic one. Power was exerted from the top, not exercised by consent. Since drug cases took up so much court time, the civil cases became backlogged and costlier. Prosecutors, to win elections, tried to convince the people that they could represent the victims of crime and the interests of the state at the same time. This was another power grab. As that developed, the general bad guy theory gave way to the concept that wrongs should be paid for and the state should make sure that happened. All of the sudden, anything that caused an injury or hurt was defined as a crime. Prisons expanded exponentially. By the time of Reagan, privatization was promoted as a cure for big government who had demonstrated that they couldn’t work in instances in which there was no reason for it to work. Crime again got redefined, depending upon the profitability of the situation. Some interest groups organized to have their definitions of crime. New crimes evolved and were defined differently in various jurisdictions, depending upon who could exercise the power to define. We went developed into a legal tower of Babel.
Thus, we evolved into a police state. The vehicle used to do this was the drug war, inflamed with the marketing of fear. There were not enough leaders with integrity to speak up for right and risk public condemnation or ridicule. There were few people with the vision to see what was happening. Intellectuals feared criticism and ridicule. The brightest were either tripping and dying, the rest were quaking and pissing their pants. Whites wanted to keep power, the rich wanted more money, youths wanted to be mellow, politicians wanted war. All this combined to steal freedom and liberty from the citizenry. Freedom was intentionally and premeditatedly stolen from the citizenry. Who is the criminal?