Without Malice Aforethought

The first was Silkwood vs. Kerr-McGee, which established the principle, so far only for corporations, that Innocence is no defense. Kerr-McGee had fully complied with the law and the plaintiffs were unable to point to a single case where a law or regulation had been violated. But after an emotional media cam-paign with false accusations, a jury nevertheless found the defen-dants guilty of "negligence" and awarded more than $10 million in damages. It used to be typical only of totalitarian states that compliance with the law was no guarantee against being found guilty, especially if the victim was a member of a group singled out for fanning public resentment, such as the Jews or the mem-bers of the former "bourgeoisie." Nowadays the big, evil cor-porations fit the bill.

The second was the US and Alaskan government vs. Exxon, which was recently settled out of court, and in which a second totalitarian principle, so far again only for big corporations, was established: Crime does not require intent. Intent used to be what distinguished murder from manslaughter and a premeditated misdeed from an accident. "With malice aforethought" is the old English legal phrase charging a misdeed and stressing that it was not accidental.

But Exxon was charged under the Migratory Bird Treaty Act with killing migratory birds without a permit, and under the Refuse Act with dumping waste without a permit. I shed few tears for a corporation that thinks it can buy itself free from the sham-environmentalist wreckers by paying them millions in protection money, its fines are tuition fees for learning otherwise. What I do fear is that this travesty of justice, demanded by the Green pitbulls and willingly provided by the government, will eventually hit the private citizen. Solzhenitsyn reports how a schoolboy threw a bottle of ink at another boy who dodged, and the bottle crashed against a statue of Stalin. The thrower got 10 years in the Gulag. Is it so hard to imagine a future where criminal proceedings are initiated against individuals who in-sulted the gods of ozone layer, global warming and other idols by, say, leaking freon from their cars or refrigerators?

These two traits of totalitarian justice seem to go deeper than the other travesties of American justice, of which there are plenty. A man runs a race with a refrigerator tied to his back, the belt hold-ing it breaks, he is injured, sues the belt manufacturer, and collects $1 million in damages. A woman attempts to commit suicide by running the engine of her car and locking herself in its trunk; after 2 days she is discovered alive, and sues the Ford Motor Co. for not providing an inside handle for opening the trunk (for once, the judge dismissed the case).

Such abuses are invited by the absence of risk to the litigating spongers. In all of Europe the loser pays court costs; in America, the government even hands out your money to "interveners" for their barratry.

However, this type of abuse only makes the country poorer while providing a fat profit for the corporation-baiting industry. But there are denials of justice that directly threaten civil liber-ties. In what country under the rule of law could a man get 10 years in prison in a first-offense burglary in which nothing was stolen and no resistance offered to the police? Only in America can political vengeance be inflicted this way: it happened to Gor-don Libby at Watergate. Only in America can the accused be denied a fair trial because the government first confiscates all his assets under the RICO act; thus effectively deprived of legal defense, he is then blackmailed into pleading guilty to a lesser offense, and (as happened to Milken) even then the government can simply renege on its promise.

Then there is trial by accusation and by political correctness. Under the onslaught of loony feminists, rape has become a political crime: in a situation where it is usually his word against hers, the accused is denied the presumption of innocence. US universities, grandstanding with blabber about academic freedom, have become centers of intolerance, political correct-ness and witch hunts.

Such drift into totalitarian lawlessness, as yet mostly applied to big corporations, cannot be patched up by formal reform of the law, for it grows out of the deeper soil of fanning resentment, with ample support from the mass media: the Greens, the feminists, the racists, and the other coercive ideologues fan resentment against the producers while protecting the parasites. It is on this level that the collapse of justice must be stopped.

The alternative for the individual citizen is what has already arrived for the corporations: Innocence is no defense, and crime does not require intent.