Free Markets, Free People

Is “ignorance of the law” a valid excuse now days?

If you’re talking “regulatory law” it may very well be … or so Insty argues in his USA Today column:

Ignorance of the law, we are often told, is no excuse. “Every man is presumed to know the law,” says a long-established legal aphorism. And if you are charged with a crime, you would be well advised to rely on some other defense than “I had no idea that was illegal.”

But not everybody favors this state of affairs. While a century or two ago nearly all crime was traditional common-law crime — rape, murder, theft and other things that pretty much everyone should know are bad — nowadays we face all sorts of “regulatory crimes” in which intuitions of right and wrong play no role, but for which the penalties are high.

If you walk down the sidewalk, pick up a pretty feather, and take it home, you could be a felon — if it happens to be a bald eagle feather. Bald eagles are plentiful now, and were taken off the endangered species list years ago, but the federal law making possession of them a crime for most people is still on the books, and federal agents are even infiltrating some Native-American powwows in order to find and arrest people. (And feathers from lesser-known birds, like the red-tailed hawk are also covered). Other examples abound, from getting lost in a storm and snowmobiling on the wrong bit of federal land, to diverting storm sewer water around a building.

Laws are proliferating like fleas and those are the ones that are actually passed by legislatures.  Regulatory law, on the other hand, is law created

“Regulatory crimes” of this sort are incredibly numerous and a category that is growing quickly. They are the ones likely to trap unwary individuals into being felons without knowing it. That is why Michael Cottone, in a just-published Tennessee Law Review article, suggests that maybe the old presumption that individuals know the law is outdated, unfair and maybe even unconstitutional. “Tellingly,” he writes, “no exact count of the number of federal statutes that impose criminal sanctions has ever been given, but estimates from the last 15 years range from 3,600 to approximately 4,500.” Meanwhile, according to recent congressional testimony, the number of federal regulations (enacted by administrative agencies under loose authority from Congress) carrying criminal penalties may be as many as 300,000.

And it gets worse. While the old-fashioned common law crimes typically required a culpable mental state — you had to realize you were doing something wrong — the regulatory crimes generally don’t require any knowledge that you’re breaking the law. This seems quite unfair. As Cottone asks, “How can people be expected to know all the laws governing their conduct when no one even knows exactly how many criminal laws exist?”

Or bothers to acquaint the public with these laws and their penalties?

Most of these laws, as Reynolds points out, are “(enacted by administrative agencies under loose authority from Congress) carrying criminal penalties” that even Congress dosen’t know about.  Imagine a body of law and penalties that are simply made up by regulatory agencies numbering 300,000.  That’s absurd!

Don’t expect to be saved by “prosecutorial discretion” if someone in government is out to get you either.

Of course, we may hope that prosecutorial discretion will save us: Just explain to the nice prosecutor that we meant no harm, and violated the law by accident, and he or she will drop the charges and tell us to be more careful next time. And sometimes things work that way. But other times, the prosecutors are out to get you for your politics, your ethnicity, or just in order to fulfill a quota, in which case you will hear that the law is the law, and that ignorance is no excuse. (Amusingly, government officials who break the law do get to plead ignorance and good intentions, under the doctrine of good faith “qualified immunity.” Just not us proles.)

It’s “us proles” who need to be worried about this.  We’re the ones who will feel the full weight of these laws when they’re enforced.  We aren’t politically important enough for prosecutorial discretion to be exercised.  And that’s the way it always is.

This is the absurdity of our government (or any government) fundamentally ignoring the fairly strict guidelines of the Constitution and changing its mission from one of the protection of rights (and the few laws that requires) to that of governing our every move for the “common good” (as defined by  … itself).


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18 Responses to Is “ignorance of the law” a valid excuse now days?

  • There are those (I’m one) who hold that “administrative law” is not consistent with our Constitution. It IS more consistent with German thinking which came into vogue with the Progressive Era.

    “Administrative law” and the de facto “agency” branch of the Federal government (especially) are very, very dangerous trends in the U.S.

    • German thinking (Prussian) preceded Progressive era by about 50-75 years,

      Progressive was rooted with Hegel, he of the “Omnipotent state”.

  • May I quote our esteemed Prof Oblivious from only a few days ago?

    I was Faculty President a few years ago and helped rewrite the policies and procedures manual for our university campus. I know it better than most. But the system policies you cite – nobody really pays attention to or knows those. They are boilerplate and only become relevant if an issue arises (and none has around the policy you bring up). People at this campus often don’t even know the details of our policies and procedures – why should they? Unless an issue arises, most are irrelevant. Even fewer know the system level policies. Your view of what we “should” know is out of touch.

    No problem here, the good and wise have it all under control whether it be so-called boilerplate policy or federal law. If you worry about this state of affairs, you are just “out of touch”. In other words: trus us, we know what we’re doing.

    All of a sudden I have a need to go and watch Sledgehammer reruns.

    • McQ nailed the backstory with this:

      It’s “us proles” who need to be worried about this. We’re the ones who will feel the full weight of these laws when they’re enforced. We aren’t politically important enough for prosecutorial discretion to be exercised.

      Professor Polywobble knows he’s a member of the protected class. Absent some over-the-top stupid action on his part, those policies won’t affect him.

      Similarly, the politicians and bureaucrats who create the regulatory state don’t see themselves as possible targets, and they’re not concerned about how tough it might be for their targets to figure out and satisfy the law.

      In fact, beyond a certain point of complexity, their power goes up exponentially. The law is so complex that only they can interpret it. That not only gives them power over their enemies/opponents – it also gives them expertise that can make them a lot of money.

      When they go into the private sector, one way to look at their ridiculous salaries is as protection money against the regulatory state.

      • Well, I kind of disagree to this extent…the Maven Of Moosesqueeze is practically immune because he actually does almost nothing.

        Case-in-point…and this was about two decades ago…was the televised account of a pure-d-environmentalist whacko who was prosecuted under just such arcane laws as we are discussing.

        This guy had a PhD in some environmental field, and had a wife who was a professional environmental writer. Pure pedigree so far, right? He’d made a very nice little living for himself contracting with rich guys in the South to create “wet lands” on their land to attract waterfowl for the rich guys to shoot. He was very good at it, and it benefited all kinds of other flora and fauna in the process. He was as aware as any of us could be of the regulatory crap to be complied with, and he did that assiduously.

        When I saw the story, he was facing decades in the Federal pen and huge fines because he’d come to the attention of a motivated prosecutor. Our prosecutor was getting creative with the regs. and that spelled DOOOOOOM for our erstwhile happy environmentalist.

        I read an account a month or so back about a nice batty lady out on the West Coast who runs a charter boat service for people who want to watch whales. Her boat and her freedom were hanging in the balance because she had committed the crime of throwing some food overboard for the critters.

        So, kind of regardless of ideological bent or purity, people who DO things are apt to be the ones caught in the gears. People like Erp are pretty safe…until “the Day of the shark” comes.


        • Granted, doing nothing of consequence gives a lot of protection. But I think examples such as those you cite are comparatively rare.

          The people in the political class (politicians, officials, most government workers, media, and academia) rarely have to worry about such things. Example: that NBC idiot David Gregory, who brandished an illegal magazine on national TV, and got away with it cold. Just finding one of those in the car of a common person would mean a ruined life.

          • Oh, granted…!!!

            The examples are legion. You don’t have to be a Geitner-level tax cheat to be immune for cheating on your taxes. Just a grunt-level GS puke at the IRS.

        • I kind of agree in that don’t expect them for the most part to trip and fall on their own pointy sticks. If they are connected and happen to start getting caught in the machine, they will be pulled free.

          Erb for instance could help a kid get an easy credit and therefore can return favors so he might be worth pulling free to someone. The Sony exec who was caught with the racist e-mails couldn’t get Sharpton fast enough to “start the healing” and get herself sprung from the spotlight for few $$$. If she didn’t have a track record of donations to the correct people I doubt it would have ended there. But none the less that is exactly where it ended.

          This is not some sitcom or 70’s action/drama where the bad guys receive the Karma of their wrongdoing, their way is immediately and clearly recognized as dysfunctional and they see the light and repent. Fudge, no.

      • Isn’t that a corollary to this problem though? On the one hand it is impossible for you to know the all the laws. On the other hand you don’t know who will be out to get you for some reason. The internecine feuding that leftists regularly resort to when they lack a clear external enemy means that one day Erb, or his equivalent, will unwittingly commit some vague microaggression or other nonsense and will be facing the sharp end of a campus witch-hunt. He’ll commit a crime he didn’t know about and be accused by a person he never mean to hurt. And you can *guarantee* it will not be an inbred sterile religious gun-loving tea-partier who is out to get him.

        • Thank you, Doc. I will ponder that happy fantasy through the rest of the day! Say, it comes from a nubile co-ed resulting from a European junket. Now, there’s a happy thought…

  • Laws are for little people. The smaller the law or the person, the more vigorous the enforcement.
    The bigger office you hold and the more egregious the offense, the less likely anything will happen to them.
    Two Cases in point:
    Barry Insane 0bama, the Usurpation of the Constitution.
    Shrillery Clinton, petty much her entire legal & political resume.

  • Government could not be “getting away with all this” if not for the popular support of the voters going wayyyyy back (as in, “to the 19th century).

    Congress started to transfer that lawmaking responsibility back, when, the early 20th century, or was it actually the railroad regs back in the 19th?

  • I see the real solution to this (and many other problems in DC) as simply putting a “sunset” law in place for the federal government.
    Make all laws expire (it seems to be popular with politicians’ promises) after .. say .. 10 years.
    This will keep Congress and the bureaucracy so busy that they won’t have any time to do anything else.
    Eventually, they will settle on a smaller, simpler set of laws.

  • Ignorance of the law seems to be a valid excuse for those lawyers, many of them graduates of our finest law schools, who think they are qualified to make laws and regulations governing every aspect of other peoples’ lives.

  • Caligula would be proud.