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THE TYRANNY OF GOOD INTENTIONS By Paul Craig Roberts and Lawrence M. Stratton (Prima Publications, 242 pages, $24.95) Some things worth saying about prosecutorial and sister government abuses are said in “The Tyranny of Good Intentions,” by Paul Craig Roberts and Lawrence M. Stratton. But mostly they are lost amidst a sea of outlandish braying against the administration of justice. Indeed, Roberts and Stratton’s polemic, subtitled “How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice,” frequently enters the domains of hysteria and inanity, which distracts from legitimate critiques of prevailing law and practices. According to the authors, the gold standard of enlightened law are the rights of Englishmen as expounded in William Blackstone’s 18th century Commentaries on the Laws of England. Not even an eyebrow is raised over slavery in the British colonies, the subjugation of women, and the countless oppressive legal disabilities fastened on Catholics and Jews for their temerity in questioning the Anglican faith. The Commentaries confined freedom of speech to the absence of prior government restraint or licensing, leaving open criminal prosecutions for seditious expression or criticism of officialdom that shook public support or affection for their rulers: The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints on publications and not in freedom of censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public … but if he published what is improper, mischievous or illegal, he must take the consequence of his own temerity. Blackstone’s gold standard worshiped in “The Tyranny of Good Intentions” betrays a craving for simplistic and amateurish answers to the complex art of government. All law is a matter of degree as soon as it is civilized. But to Roberts and Stratton, moderation and balance are sacrilegious. Take jury trials in criminal cases. The two properly note its safeguard against government overreaching. But juries can also be vicious and popular instruments of oppression. During the long years of Jim Crow, whites murdered and preyed on blacks with virtual impunity because all-white juries would refuse to convict no matter how incontestable the proof of guilt. On the other hand, monochromatic juries routinely convicted blacks no matter how anemic the evidence, as in the infamous Scottsboro trials. The authors fatuously liken plea bargains in criminal cases to “torture,” like the rack and screw, because of the inducement to confess. An entire chapter, “Reinventing Torture,” is devoted to the topic. The vast majority, however, plea bargain because of their guilt, and typically exploit a prosecutor’s sparing resources to circumvent suitable punishment. In moments of candor, criminal defense attorneys generally will concede that they have seldom if ever represented an accused who was innocent. The authors also misapprehend basic legal concepts — for instance, equating a bill of attainder with an ex post facto law or by characterizing owners of property forfeited because of its exploitation in crime as convicted criminals themselves. Roberts and Stratton naively insist that “the foremost task of a justice system is to establish the truth or falsity of the charges levied against the accused.” The law, however, tilts the scales in favor of falsity that benefits the accused because of competing values, for instance, the requirements of jury unanimity, proof beyond a reasonable doubt, and no adverse comment on a defendant’s silence, the prohibition of double jeopardy, the exclusion of reliable evidence obtained through illegal means, and various communication privileges that conceal truthful incriminating statements. Everything in the eyes of the authors, however, is refracted into prime colors; shades of gray that reflect the inherent messiness of government and discriminating jurisprudence is alien to their myopic vision. Gestapo tactics, say the twin crusaders for justice, have replaced FBI Director J. Edgar Hoover’s scrupulous bow to civil liberties. Hoover may have erred in collecting voluminous political files, the paladins preach, but the benign purpose was to “protect the bureau from political misuse.” The two neglect to note Hoover’s unconstitutional use of warrantless wiretapping, electronic surveillance, and burglary (until stopped in 1966), or the collection of massive files on the likes of Groucho Marx and Charlie Chaplin. In 1974, Congress stepped in to prohibit the FBI from collecting political intelligence on our citizens provoked by Hoover’s abuses. Chronic distortions, sloppiness, hyperbole, and egregious overstatements make “The Tyranny of Good Intentions” more suited for the fanatic than for the reforming statesman. Bruce Fein is a private attorney in McLean, Va., specializing in constitutional, international, and communications law. Fein was general counsel to the Federal Communications Commission from 1983 to 1984 and associate deputy attorney general from 1981 to 1982.

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