Innocent? Or just not guilty yet?

By JSC5

Just a quick point about innocence: the legal fact that you’re innocent doesn’t mean you didn’t do anything wrong. It also doesn’t mean you would still be innocent in a world with marginally-more-just legislation.

This point is beautifully illustrated by the recent news that prosecutors have decided not to bring charges against former House Majority Leader Tom Delay. In response to this unhappy news, the New York Times editorial board argued that “many of Mr. DeLay’s actions remain legal only because lawmakers have chosen not to criminalize them.”

Some conservatives and libertarians took the opportunity to stand up for DeLay and put down the Times. Jonathan Adler briefly snarked, “Well, yes. That’s the way it works.” Megan McArdle took the game further, calling it the “Worst Editorial Line Ever”,* and continued,  “the instinct to punish people even though they may not have been technically breaking the law . . . well, it’s usually selectively applied by the people in power, to those who are out of it.  Maybe what DeLay did should have been illegal, but it wasn’t, and he has, therefore, been found innocent–not just ‘found innocent’. “

I don’t get what Adler and McArdle are saying here. Clearly the category of “things that are illegal” is defined by previous legislative action.** I’m pretty sure the Times editorial board knows that, and I don’t think Adler is really adding anything to the conversation except willful misinterpretation. McArdle has a potentially-more-interesting point, which is that people in power define what is legal and what is illegal. That should have some really interesting implications, but she doesn’t actually use that observation to advance her argument. Instead, she just ends up basically agreeing with Adler that the Times editorial is one stupid tautology.

The problem is that McArdle and Adler both seem to have missed the point of the editorial. So let me reconstruct the basic argument:

1. There is a distinction between what is legal and what is right (such as when someone named DeLay takes large in-kind donations of fancy vacations in return for favorable government action, but didn’t happen to break the law in the process).
2. One important duty of legislators is to criminalize very bad behavior (such as what DeLay did) and bridge the gap from point #1.
3. Legislators have failed to do that when it comes to public corruption law, (thus leaving DeLay ‘innocent’)
4. Therefore, we need legislators who will do a better job making things illegal that really are bad (like public corruption).

Now, if Adler and McArdle and others want to live in a relative world in which all that matters is what is currently defined as legal, then more power them. I (along with the Times editorial board, apparently) believe that it’s more important to maintain a vision of progress, in which we point out the shortcomings of our current legal system and advocate for positive reforms.

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* Hyperbole alert: that can’t really be true, and McArdle can’t really mean it. Or maybe she does mean it, and just hasn’t read many editorials in her time.

** Except, of course, for crimes under common law. But that’s something you’d have to pay a ton of money to learn about in a fancy law school, and who’s going to do that?