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Overcriminalization makes a joke of justice

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In this nation dedicated to liberty and justice for all, elected menaces have been writing vague or persnickety laws allowing courts to convict anyone of almost anything when some prosecutor then says here's a chance to get somebody, to throw some unsuspecting soul in the slammer for years.

The enthusiasm for imprisoning citizens for minor missteps or no misstep at all applies across the board, to people in virtually every walk of life, but especially, it seems, to those who have made scads of money in business. Do that and simultaneously upset someone and the high achiever could be put in ruinous trouble by what is referred to as the federal "honest services" law.

Until lately, that is. The law was recently reworked by a unanimous Supreme Court.

Earlier, it had been used as at least part of the case against any number of big-name executives, including the highly admired, intellectually able Conrad Black, whose millions derived from newspaper publishing. He's now serving a six-year prison sentence and, so far as I can tell by reading a number of accounts, is guilty of nothing he could have known would be construed as criminal.

This law basically said it's a crime if you deprive others of their right to your honest services. Check out a David Frum commentary piece written right after arguments before the court were made on this matter, and you find Justice Stephen Breyer wondering just how many American employees give honest service for their wages every minute of every work day and asking whether this law did not pretty much let an attorney general make up his own mind what was and wasn't illegal.

While I agree this statutory abomination should simply have been scuttled, as some on the court argued, it was instead modified to take effect only in cases of alleged bribery or kickbacks. It is at least restrained from its most senseless afflictions.

Sadly, the broader misery is not so hampered, as is amply documented in a Heritage Foundation book, "One Nation Under Arrest." Its theme of overcriminalization is affirmed to one degree or another by a variety of different groups, including the American Civil Liberties Union.

The major issue in the book and on a Heritage Web site is making crimes out of matters that do not rise to that level and should instead be left to civil law, regulations or just social disapproval. A citizen, it is noted, can end up in the clinker even with no purpose of doing anything wrong. He may think a sneeze is just a sneeze, only to find later that he is accused of contributing to a pandemic, that this is a felony and that there is a chance of long incarceration.

That imagined instance is not as exaggerated as we all might hope. The Heritage book tells of how we've especially been saying goodbye to precious legal traditions over the past several decades as criminalizing legislation has more and more been seen as an answer to any and every ailment. An impetus may have been an intensely experienced fear of putting law-abiding citizens at risk because of attitudes that were "soft on crime," but it hardly follows we should indiscriminately be tough on non-crime.

Heritage is conservative, but this is not a conservative-vs.-liberal issue. As one of a number of possible counter examples, the worried ACLU is no one's idea of conservative, and Heritage promotes non-partisan efforts to bring about reform. In figurative terms, some might suggest, those headed the opposite direction are more criminal than their targets.

Examiner Columnist Jay Ambrose is a former Washington opinion writer and editor of two dailies. He can be reached at: Speaktojay@aol.com.