Commentary

REMEMBER THOSE RIGHTS YOU THOUGHT YOU HAD?

I'm an evilutionist from the word go, but that doesn't mean I have to like
everything the process kicks out. Some things need to go extinct. Consider
just a few of the evolutionary turns the law has taken.

The case was tried a long time ago, but: Did you know that if you're
walking down the street and see a cop coming and you run, that officer has
probable cause to chase you down and find out what you've got to hide? Even
if it's nothing but a sense of humor? If memory serves, the Supreme Court
itself gave its blessing to that reading of Article IV. I don't believe
James Madison would think much of that ruling.

Lots of warrantless searches have withstood judicial review, too -- often
because the arresting officers were said to have acted in "good faith." In
general, laws and procedures that hinge on divining an officer's state of
mind leave me cold. I think Jimmy would feel a draft, too.

Conspiracy charges are much more common than they were when I got into this
business. Not that we have no precedent to consider. A subordinate who
plotted George Washington's death ended up dead instead. Benedict Arnold's
co-conspirator was hanged.

There was, however, a time when two secret lovers who decided to knock off
one spouse or the other would have been charged with murder. Today, you'd
have conspiracy to murder, use of a firearm in the commission of a felony,
assault, murder, conspiracy to suppress evidence, concealment of evidence
and, maybe, unlawful disposal of a corpse. I call that "piling on." Got a
suspicion that Madison would consider it double jeopardy.

First cousin to conspiracy: the Racketeer Influenced Corrupt Organizations
Act, enacted to help snag mafia types who profit from interstate
trafficking in drugs, prostitution, murder, whatever. It was used against
anti-abortion protesters -- with the Supreme Court's blessing. It also
became a lucrative source of income for the Drug Enforcement
Administration, which targeted people who had a lot of property. Misuse has
abated somewhat since agents got the wrong house and killed a suitably rich
but inconsiderately innocent man who didn't grasp the economics of the
enterprise. It's still on the books, though.

In some states, if you're convicted of a sex offense it's not enough for
you to serve every day of your sentence. Another jury can be convened (note
the absence of another offense or another indictment), and if the jurors,
drawing on their vast medical expertise, conclude that you would have
"serious difficulty" controlling yourself, the state doesn't have to let
you out. Thus saith the nation's court of last resort.

This once was true, and I've heard nothing about any reform: IRS auditors
must tell you if they find an error you've made in your favor, but they
need not tell you if they find an error you've made in the government's favor.

Give government credit for consistency, if nothing else. Unless this one
has been repealed, it is unlawful for you to lie to Congress. It is not, as
columnist James J. Kilpatrick noted when this abomination slipped through
two decades ago, unlawful for Congress to lie to you. So we can still hold
House and Senate campaigns.

Same with federal investigators and grand juries. Unless you're the target
of the investigation, you do not have the right to remain silent and must
truthfully answer every question about anything you've ever done -- to
include incriminating yourself, in whatever detail is desired. In the grand
jury room you do not have the right to have an attorney present. If you
desire an attorney and cannot afford one, one will not be appointed for
you. If you do not understand each of these rights it doesn't matter
because you don't have them anyway. Madison is much, much better off dead.
That one would kill him, in great agony.

In Jimmy's day, jail was a place where you were briefly held until the
authorities were ready to hang you, put you in the stocks or something.
Now, jail could be your home for a year or two as you await your day in
court. And no wrong would have been done because confinement isn't an issue
until your speedy trial has commenced. Isn't that clever?

Three-strikes laws: We all remember the guy (for God's sake, we can at
least remember him, can't we?) who was sentenced to life in prison, no
possibility of parole, for stealing a pizza.

Drug-baron laws: A woman draws the same sentence for a drug conviction
because the total weight of the morphine compound that she sold for $150
exceeded 56 grams. (Happy ending: She was resentenced to time served after
an appellate court ruled that life without parole was a mite harsh for a
first offense. Great. Only four years' hard time.)

Now, right here is where I await groans of disappointment from some of my
anti-government correspondents who've been sitting there asking in
disbelief, "What the hell's got into Smith? He's making sense!"

Back off. I've been editorializing against such things, as they evolved,
for more than 30 years. But here is how reality works: Once is not always;
flawed is not dysfunctional; and there's a huge difference between isolated
rotten judgments and The Way Things Are.

Nothing devised by humans can be perfect. But our system is resilient and
adaptive, able to take direct hits and still deliver most of the goods,
most of the time. I've seen no rival for it -- not majoritarianism, nor
fascism, nor theocracy nor oligarchy nor communism nor anarchy nor Naziism.
("Nazi" began as an acronym, key word "Socialist.")

I'll always be a critic of our system, but I'd die to preserve it -- and
with it the hope that self-governing people will hold onto most of what is
good about it and, over time, send most of the rest the way of the dodo.

Gene Smith is the Observer's senior editorial writer.