Ever since a certain YouTube video of him lecturing went viral over a decade ago, Professor James Duane of Regent University (VA) has embarked upon a personal crusade to educate the American public. The message is simple: do not talk to the police.1
By this, of course, he is referring to Fifth Amendment rights pertaining to criminal investigations undertaken by the police. Duane recognizes that speaking to the police (strictly in the present tense) is acceptable in certain circumstances, such as routine traffic stops or emergencies. Antagonizing the police is unwise, counterproductive, uncivil, and discourteous. His advice is rather never to speak to the police (unless via council) when speaking in a past tense, certainly not in the context of a criminal investigation, nor even in circumstances that might transpire to be a criminal investigation. Better to keep schtum!
His basic point is that what you say can and will be used against you in a court of law, and you could end up spending your life behind bars, even though you are entirely innocent. An impressive range of examples are given, where people in all manner of seemingly innocent and innocuous situations have volunteered information to the police only to be charged and convicted (wrongfully) later on for all manner of reasons. Malign and vicious lawmen? No. It happens nevertheless.
This has always been a problem, but over recent decades it has acquired such a significance for Professor Duane that he has felt the need to write a book.2 Something has been happening that makes the problem of self-incrimination and Fifth Amendment rights more important than before.
As Duane is so emphatic about repeating, his advice to remain silent is not about guilt and innocence. It is not a question of truth, but one of rhetoric, language, and politics. Why? Because he is trying to educate people to a simple truth of our judicial reality: everything is potentially incriminating.
Overcriminalization
Over the last few years, we have become exposed to the problem of under-criminalization. However well-intended, changing criminal justice practice (which is not actually criminal justice reform) has engendered a clear and acute increase in criminal activity across the cities of the Union in a way that has not merely exposed large sections of the citizenry to danger and harassment, but has led to a political and social demoralization in the major urban agglomerations. Whether cashless bail, cutting of police resources and numbers, prohibitions on policing practices, or the more troubling and dangerous arbitrary refusal of district prosecutors to prosecute crimes, a general sense of lawlessness is spreading.
However, this acute under-criminalization has obscured another danger that has been lurking under the surface of society. A chronic over-criminalization has built up in the law, which is not entirely unconnected to under-criminalization and has run parallel to it but over a longer period of time. Its more glacial progression has possibly helped to conceal its growth, but it is nevertheless a danger at least as great as the disintegration of urban social tranquility that stems from an aversion to prosecution.
So, what is overcriminalization?3 The concept is not part of any vilification of the police institution in the United States, but is something else that is quite particular. Overcriminalization is the proliferation of codes and articles in the criminal law, for which a person can be arrested and prosecuted criminally at any time. More specifically, it is the incorporation of regulations and codes into the criminal statutes by means of sweeping reference to those codes and regulations in new laws that have not been properly scrutinized either by judicial or legislative entities.
By inserting referential phraseology into new federal laws, entire codices that can run thousands of pages long – in areas ranging from environmental protection regulations to residential building codes – are turned into criminal statutes for which transgressors can be prosecuted under the terms of the now-encompassing criminal laws. By this means, the number of federal crimes has become literally inestimable.
The US Congress and Supreme Court have delegated great discretion to federal regulatory authorities (e.g. EPA, SEC, FTC) to write regulations that are then incorporated by reference into the provisions of federal criminal statutes that make it a crime to violate any of the regulations. These backdoor criminal laws are not subjected to review, nor are the regulations to which they refer even read by Congress, and they have multiplied. Now that federal regulators have effectively been given carte blanche to make law by writing new regulations, the sheer number of acts rendered criminal has rapidly expanded to epic proportions.
How has this happened? Lack of judicial restraint and a political drive to enhance public welfare have incentivized Congress and federal agencies to expand and proliferate regulations (which are then encompassed in the criminal code), but which are not subject to sufficient judicial scrutiny or review. This latter failure is likely for practical reasons, because there are thousands of them! Aside from the absence of a culture of judicial constraint, the principal motivation seems to be social policy reform. Regardless, the outcome is politically sinister.
Aside from the obvious, why is this so disturbing, and what does it have to do with talking to the police?
The substantial effect of this overcriminalization is to place citizens in a position where they are almost certain to commit crimes of which they have no knowledge and could not reasonably be expected to have knowledge.
For example, it is illegal to sell or possess margarine in a container, if there is more than one pound of margarine in the container. To be found in possession of the seeds of a Water Hyacinth plant that have been transported across state lines is a crime. A parallel process within states’ systems means that it is now illegal to possess a seashell in the Commonwealth of Virginia. The list of similar examples is endless.
The classic instance of a policeman following a driver just waiting for the inevitable transgression is now extended across, and intensified into, the entire sphere of social life. Paul Rosenzweig (legal scholar) describes this as ‘a pathological legislative approach to criminal law and an excess of prosecutorial discretion’,4 which has resulted in an exposure of the citizenry to ‘a standard of near-absolute liability’.5
In her dissenting opinion in Yates vs. United States (2015), this is perhaps what Justice Elena Kagan was alluding to when she referred to ‘overcriminalization and excessive punishment in the U.S. Code’ as being a ‘deeper pathology in the federal criminal code’.6 It is this notion of a pathology that is especially interesting, for pathology can be a common denominator across time and space, and (as we shall see below) it has reared its ugly head in another time and place.
The effect is to weaken one of the two key principles entailed in the definition of crime - mens rea (bad mind). Along with actus reus (bad act), a crime requires there to be an intention to do bad. Unintentional harm is a matter for torts to be pursued civilly through civil legal process, but intentional/witting/knowing acts of doing bad are criminal. Overcriminalization means that more and more acts are being treated as criminal in situations where the accused has no knowledge (and therefore no intention - mens rea) of the bad or harm that they are accused of doing.
What is important here is that the criminal code ceases to be criteria against which a citizen can regulate their own behavior or assess the behavior of others. Instead, it becomes an enabling document for opportunistic authorities to pursue criminal prosecution. It places citizens under the arbitrary will of those in a position to bring such discretionary prosecutions – i.e. members of the judicial bureaucracy. Like a sword of Damocles hanging over the head of each and every citizen, the individual is rendered helplessly ignorant of where and when the blow might land. The consequence is fear, self-censorship, and vulnerability to the malicious actions of anyone we might displease, who might happen to have superior resources or authority at their disposal in one way or another.
This is what James Duane has in mind when he cautions against talking to the police. Without even knowing it, you could very easily confess to a crime by simply describing your daily routine to a police officer in a statement, conversation, or interview, which then can and will be used against you for a variety of arbitrary reasons. When dealing with professional and ethical lawmen, this might not sound too bad, but politically indoctrinated lawmen…?
If you do not think that police officers will act that way, then you have not considered the pressure police and judicial personnel are under to get results in investigations. Nor do you grasp the ideological motivations that animate the new breed of prosecutors in certain jurisdictions, who have political reasons to pursue the prosecution of certain categories of citizen. Quite simply, statements provide the rope from which you will ultimately be hanged, and with the massive increase in criminal laws the scope for finding something compromising places you in an almost impossible position.
In his Litigation Explosion (1991), Walter Olson observed a similar potential for this kind of behavior in the early years of overcriminalization.
But it’s a funny thing about smoking guns. Given a big enough file cabinet to search in, or a long enough list of questions to ask a single parent, a lawyer willing to spend some time at it can quite often find something portrayable as the fabled firearm.7
At this point, a juxtaposing historical lesson will help to clarify the threat all this poses to freedom and justice.
Soviet Parallel
Comparison with the Soviet Union might seem hysterical, but it is a good place for making striking historical comparisons. This situation of overcriminalization in the US is not a million miles from the substantial effect of the notorious Article 58 (1927) of the Soviet Criminal Code, which of course opens the door to a historical analogy we would rather not make. Article 58 of the penal code of the Russian Soviet Federative Socialist Republic covered ‘political crimes’, and its main provisions were as follows.
58-1: Counter-Revolutionary Activity.
58-1a. Treason.
58-2. Armed Uprising.
58-3. Contacts with foreigners "with counter-revolutionary purposes".
58-4. Aid to the "International Bourgeoisie".
58-5. Urging any foreign entity to declaration of war, military intervention, blockade, capture of state property, breaking diplomatic relations, breaking international treaties, and other aggressive actions against USSR.
58-6. Espionage.
58-7. Wrecking.
58-8. Terrorism.
58-9. Damage of transport, communication, water supply, warehouses and other buildings or state and communal property with counter-revolutionary purpose.
58-10. Anti-Soviet and Counter-Revolutionary Propaganda and Agitation.
58-11. Any kind of organizational or support actions related to the preparation or execution of the above crimes is equated to the corresponding offenses and prosecuted by the corresponding articles.
58-12. Non-reporting of "Counter-Revolutionary Activity".
58-13. Active struggle against revolutionary movement of Tsarist personnel and members of "counter-revolutionary governments" during the civil war.
58-14. Counter-revolutionary sabotage.
As Alexander Solzhenitsyn opined,
… great, powerful, abundant, highly ramified, multiform, wide-sweeping 58, which summed up the world not so much through the exact terms of its sections as in their extended dialectical interpretation.8
Article 58 provided the excuse. It was the enabling document that pretty much included all aspects of life. In the hands of an unscrupulous and vindictive judicial administrator or a thorough and ambitious interrogator, there was very little in a persons life that could not be found in the provisions of the Article.
Let’s just take 58-7 (“Wrecking”). This was defined as
Undermining of state industry, transport, monetary circulation or credit system, as well as of cooperative societies and organizations, with counter-revolutionary purpose (as defined by 58-1) by means of the corresponding usage of the state institutions, as well as by opposing their normal functioning.
The problem is that tardiness to work by 10 minutes was often treated as an instance of “Wrecking”, punishable by 10 years in Gulag.
Likewise, 58-9 (Sabotage) was defined as
Conscious non-execution or deliberately careless execution of "defined duties", aimed at the weakening of the power of the government and of the functioning of the state apparatus.
This could include a worker simply breaking a shovel by accident. 10 years.
One instance recited by Solzhenitsyn in The Gulag Archipelago tells of how a shop keeper pinned up a newspaper ad on his wall and was arrested and sentenced to 15 years hard labor. His crime? 58-6 (Terrorism). He had unwittingly put the pin through the forehead of comrade Stalin who was glaring out from the column of an adjacent article. It evidently bothered someone shopping there. A report was filed.
Perhaps 58-1 (Counter Revolutionary Activity) is the most expansive.
A counter-revolutionary action is any action aimed at overthrowing, undermining or weakening of the power of workers' and peasants' Soviets... and governments of the USSR and Soviet and autonomous republics, or at the undermining or weakening of the external security of the USSR and main economical, political and national achievements of the proletarian revolution.
This could be anything.
Article 58 expanded liability to “a standard of near-absolute”, as Rosenzweig put it, because anything and everything was capable of being interpreted under its provisions. With the right will, this could encompass anything that a prosecutor or policeman just doesn’t like the sound of. Naturally, this is precisely what happened. Interrogators would spend hours talking to those whom the organs had arrested for political reasons (or even just to fill local arrest quotas), just waiting for the right statement, comment, remark, that would allow them to hang 58 around the poor sucker’s neck. Some NKVD interrogators simply asked arrestees to write down a statement detailing their working day. They would sift through…. and voilà!
Once the arrest is made. The matter of innocence is irrelevant, and that is the crucial matter. There is no mens rea here. A set of circumstances are put into motion, the object of which is a technical and bureaucratic outcome irrelevant to truth. Revolutionary justice cared little for such bourgeois notions as guilt/innocence. The ‘poetic truth’ trumped the empirical truth.
Arbitrary Power
When confronted with police officers and other government agents who suddenly arrive with a bunch of questions, most innocent people mistakenly think to themselves, Why not talk? I haven’t done anything. I have nothing to hide. What could possibly go wrong?
Duane is adamant on this one. If you find yourself in a small and anonymous-looking room downtown being questioned by the police and trying to decide what your next move ought to be, you need to proceed on the assumption that everything you think you know about the investigation is a lie, and that you know absolutely nothing for sure about what is going on outside that room. Subject to ‘absolute liability’, you have no idea what the judicial machinery is doing.
Duane’s practical advice is simply not to talk to police, other than through the safe prism of council. However, his broader and more subtle point is to draw attention to the expansion in the arbitrary power of judicial and police authorities, which we have not sufficiently appreciated, and the thing about arbitrary power is not merely that it is unjust, but that it is unstable and capricious. You never know where you stand, and that is dangerous for free and democratic living.
In undercriminalization and overcriminalization, what we are dealing with here is a creeping expansion in the exercise of arbitrary power. Control over the definition, prosecution, and judgment of crime on the part of the citizenry is being gradually circumvented and the law turned into an apparatus of arbitrary political administration.
… the legislative branch has transferred a substantial fraction of its authority to regulate American social and economic conduct to those who have no expertise in the matter: prosecutors, trial judges, and jurors who make decisions on criminalizing conduct without any ability to consider the broader societal impacts of their decisions. (Rosenzweig)
In parallel to overcriminalization, the arbitrary and discretionary power held by prosecutorial administrators not to prosecute certain categories of individual for ideological reasons is the other side of the same medal. The under-criminalization of acts that display both mens rea and actus reus subjects the generality of citizens to fear and intimidation from criminals in the same way that the Soviet authorities used the famous Russian ‘thieves’ (blatnoyie) to terrorize and demoralize the political prisoners sentenced under Article 58 once they had been thrown into the camp circulation of Gulag.
Stuck between undercriminalization and overcriminalization in our cities, the citizenry is placed in a vice. Between the hammer of an arbitrary judicial apparatus and the anvil of a marauding and terrifying criminal social fraction, the citizen lives under an increasingly dark veil of fear and intimidation – possibly the worst condition for the health of a free and independent body politic in the long run. As Rosenzweig asks at the and of his article – “Are broader social needs well served when individual liberty and responsibility suffer?”
In one moment, you can be arrested and charged for an action you have been doing everyday for decades in the name of a crime you didn’t even know existed. In the next moment, you can be arrested for being forced to defend yourself against a violent recidivist criminal that your local DA repeatedly refuses to prosecute but who is willing to prosecute you for doing the job of a policeman who has been withdrawn from circulation. It’s the sword of Damocles from both ends.
So, what are we to do about it? That is a matter for another day, but for a start we can take Professor Duane’s advice and be very wary of talking to the police in the past tense.
Endnotes
See also James Duane, “The Right to Remain Silent: A New Answer to an Old Question,” Criminal Justice 25, no. 2 (2010), pp. 1-3.
James Duane, You Have the Right to Remain Innocent (New York: Little A Books, 2016).
See Douglas Husak, Overcriminalization (Oxford: Oxford University Press, 2007); Anthony Bradley, Ending Overcriminalization and Mass Incarceration (Cambridge: Cambridge University Press, 2018).
Paul Rosenzweig, “The Over-Criminalization of Social and Economic Conduct,” Heritage Foundation, 17 April (2003). www.heritage.org/research/legalissues/lm7.cfm.
Justice Potter Stewart, “United States v. International Minerals & Chemical Corp.,” 402 U.S. 558, 569 (1971) (Stewart Dissenting).
Yates v. United States, 135 S. Ct. 1074 (2015), at 1100–1101 (Kagan, J., dissenting).
Walter K. Olson, The Litigation Explosion (New York: Truman Talley Books, 1991), p. 125.
Alexander Solzhenitsyn, The Gulag Archipelago: Volume One (New York: Harper Perennial, 2007), p. 60.
TL:DR: , "Three Felonies a Day".
I have never listened to or read Professor Duane previously, but I know enough to know that the criminal laws in the United States are far-reaching enough and broad enough in scope that an aggressive cop or prosecutor can always find a pretext to charge anyone at any time. This is completely within the letter of the law. This also is entirely intentional.
Of course, they can charge anyone, but as a practical matter, law enforcement cannot arrest, try and imprison everyone. So who get caught up int he gears of the legal machinery??
if the cops decide that they want to make an example out of someone, they can. If people of influence and authority want someone voted off the island, so to speak, a reason can always be found to do so.
Finster's First Law readeth thusly: "There is no such thing as law. there is only context." The longer form version is as follows: "Laws are for little people. Policy is for The People Who Matter, because policy is what determines when the law is applied, how, and to whom."
An excellent article about under-criminalization and over-criminalization. There is a word for all of this: corruption. Government corruption has become a threat to the rule of law in the U.S. It's time for citizens to start studying the U.S. Constitution, Bill of Rights and Declaration of Independence. The silent majority needs to refresh their knowledge of civics and start speaking up about government corruption and abuses when they see them taking place. It's time for everyone to do what they can to reverse the American Marxist revolution that has taken over our government and institutions.