A decent and effective legal system protects life, liberty, and property; helps to settle disputes peacefully; applies rules impartially while dispensing justice to wrongdoers; and binds even rulers to rules. Sounds quaint and old-fashioned, I know. By analogy with the “internal morality” of law described by Lon Fuller, let’s call it the external morality of law.
In many ways, American law violates those basic standards. Double jeopardy, prosecutorial discretion, theft decriminalization, political lawfare, and executive overreach show that the U.S. suffers from the misrule of law.
Ne bis in idem used to be a civilized principle—in the European Union, it still is—but the U.S. division between state and federal law makes double-dipping easy in high-profile cases. For example, officers who forcefully subdued Rodney King in 1991 were acquitted in state court, then convicted federally; the feds went after Derek Chauvin for good measure even after Minnesota tried him. In such cases, the moral satisfaction of racial justice prevails.
In the American system, DAs have always had great discretion. Progressive prosecutors have begun exercising it in a particular way: they “pull back on . . . punitive measures, or, at least, divert them,” and are simply “taking items off the menu”—from pot charges to demanding death penalty. In their domains, the criminal code only applies selectively.
At the national level, the federal government exercised discretion at least as boldly when in 2012 President Obama issued an executive order, “Deferred Action for Childhood Arrivals” (DACA), that shielded all illegal immigrants brought to the U.S. before age 16 from prosecution under existing immigration law, at a time Congress had declined to legislate such a measure. Law had little to do with it.
Several states have made progressive prosecutors’ lives easier by limiting the criminal charging menu. For example, in 2014 California voters bolstered the state’s cutting-edge credentials by passing Prop 47, charmingly titled “The Safe Neighborhoods and Schools Act,” that downgraded theft under $950 to a misdemeanor. As intended, it reduced prison populations—and the security of private property. A twofer?
Many serious offenses do not incur serious sanctions. For example, homicide clearance rates have been declining since the 1960, to the point that the odds of solving murder cases become “a coin flip”—or worse in minority neighborhoods. As Paul Robinson and colleagues say in a recent paper, “Of more than 920,000 aggravated assaults annually, only 8.3% lead to a conviction. Of 463,000 rapes and sexual assaults annually, 99.5% end in no felony conviction.” In America, they let you get away with things. Punishment is for chumps.
When convenient, America law can be used to attack political opponents. In 2005 Democratic Austin DA Ronnie Earle prosecuted former GOP House Speaker Tom DeLay for money laundering related to campaign finance; he was finally acquitted decisively on appeal eight years later. In Wisconsin, Democratic Milwaukee DA John Chisholm pursued GOP Governor Scott Walker in a secretive “John Doe” investigation for “illegal coordination” between his campaign and conservative advocacy groups, before the state’s Supreme Court shut it down. Such domestic lawfare against perceived adversaries, uncommon in other democracies, grinds down its targets and turns process into punishment—pour encourager les autres, if nothing else.
Historically, the rule of law was meant to apply to rulers, but American leaders dislike the inhibition. During the Covid era, the Centers for Disease Control, not heretofore authorized to intervene in the housing market, declared a rental eviction moratorium. Also on presumed Covid emergency grounds, President Biden proposed extensive student loan forgiveness, though Congress had not allocated the funds. For about a century, administrative agencies have accumulated powers without adequate legal constraint or grounding in the actual Constitution. As recent Supreme Court decisions illustrate, some American judges now think all this went a little too far. But many of our rulers still prefer to rule unruled.
This small sample, easily amplified, shows a pattern: the selective double jeopardy, broad use of discretion, shortening of the criminal menu, use of domestic lawfare, and executive overreach serve progressive purposes, even if such actions trigger opposition or face occasional judicial slap-downs.
Of course, the misrule of law is also due to ordinary dysfunction and incompetence. The American legal system often fails to supply basic order, protect liberty, and apply rules consistently. American officials routinely violate the external morality of law. It seems they like it that way. With apologies for what normies might consider a lapalissade worthy of Captain Obvious: a liberal society should not.