Mala in se vs. mala prohibita

I was once friends with a judge, a very smart man, who hipped me to this important distinction, which goes back to to the roots of Common Law– the principles our legal code is based on.   There are two kinds of crime: the malum in se— a common sense crime that is morally wrong and hideous in and of itself (cutting the limbs off a healthy baby only to cause agony comes to mind) and the malum prohibita, a crime that is a crime only because a law makes it so.   

It is a distinction most people never even consider.   For purposes of sometimes racist law enforcement in America, for example, by those who cry out for “Law and Order!”, no distinction is visible between these two very different kinds of law.   It is part of the ignorance and self-righteousness of fucking racists who rail against criminals and it’s the driving force behind America’s world leadership in mass incarceration and criminalization of the poor.

In 1925 in America it was illegal to buy or consume whiskey or beer.  That was Prohibition, when the Constitution was actually amended to make that the law of the land.   The experiment went badly and was abandoned about 13 unlucky years later when the Constitution was amended again to repeal that disastrous attempt to “legislate morality.”   

What was the moral issue being legislated?    Not that it was wrong to have a drink of alcohol once in a while, but that it was a grave social ill for masses of poor men to spend all of their pay getting drunk, starving their family and beating them.  There had been a widespread epidemic of drunkenness and violence among mobs of underpaid American working men in the decades before there were any labor laws in the country.  It was a massive social problem, the unfortunate synergy of hard work, poverty and alcohol. 

It turned out not be a crisis that could be cured by banning alcohol and locking up people who wanted to drink it.  After a bloody criminal reign of terror that made millionaires of criminals who organized into national syndicates to circumvent the law, and a social problem only made worse by an ill-designed law that criminalized a popular form of recreation and punished everyone (while causing millions of Americans to hold the law itself in contempt), the nation came to its senses and the law was changed.

During Nixon’s first term as president he needed a harsh law to enforce against a generation that hated him.   Nixon is on tape referring to his many enemies by words I shouldn’t write here unless I put them in quotes: “fags”, “homos”, “kykes”, “niggers”, “spics”, etc.   Nixon could not make a law to imprison these despised minorities directly, so he targeted something many of his more outspoken enemies enjoyed: marijuana.   The Controlled Substances Act criminalized the use of certain drugs according to their “dangerousness”.  Marijuana was placed in the most dangerous category of drug: highly addictive and with absolutely no medicinal value.  It remains there today, in spite of its many known medicinal uses and a wide consensus that it is no more harmful, is even far less harmful, than alcohol.  The Controlled Substances Act, enforced strictly, allows the police to arrest people en masse, under a federal law, if they are smoking pot, say, during an otherwise lawful political protest.

Remember mala in se and mala prohibita.   If you criminalize something, like marijuana, it gives you license to stop and frisk someone you suspect might be carrying it.  If they resist a search, a policeman can legally use a bit of force.  If things escalate, and the suspect (suspected of a malum prohibitum) tries to run, rarely, if ever, will a cop be prosecuted for shooting the fucking defiant criminal in the back.  

I am thinking of this in context of the current president’s most recent noise about doing something about the opioid crisis in the United States.  The crisis was created largely by overprescription of deceptively marketed, highly addictive prescription opioids sold in a lying, multibillion dollar pharmaceutical scam orchestrated by a very rich executive of dubious morality, a person who will never be held accountable anywhere, a scumbag named Richard Sackler.   Trump spoke of the opioid crisis, during his campaign, to audiences in poor areas where hopeless people were turning to opioids in despair, and they cheered, because the lying Reality TV superstar was promising people in the rust belt and coal country that he’d give them their shit jobs back when he was president.   

Tens of thousands died of opioid overdoses last year, about 150 Americans are dying opioid caused deaths daily now, according to the CDC.   Trump signed an executive order in March, scrawling his name bigly on an order creating a commission to study how to best end this crisis.  We heard little more about it (the super-qualified Jared Kushner was at one point tasked with ending the crisis, remember) until he once again rightly called it a National Emergency in an August speech, and promised, with his usual sincerity, to take immediate steps to deal with it.

The other day he ordered his Health Secretary to get busy fixing the opioid crisis, calling the crisis a National Public Health Emergency.  A man with a shaky grasp of nuance, the president may or may not have known that the funding for a National Emergency (which his own commission urged him to declare in July) can tap into billions, while funding for a Public Health Emergency can tap into a fund of only $57,000, at present.   You can read about that here, if you have the stomach for a short article.

Here is the official position of the Trump administration on our nation’s overall drug crisis, voiced by Jeff Sessions, a man deemed too racist to be confirmed as a federal judge (imagine how fucking racist you have to be not to hop over that bar):

AMY GOODMAN: Earlier this year, Attorney General Jeff Sessions vowed a major revival of the so-called war on drugs. This is Sessions speaking at the Department of Justice headquarters as he rescinded two Obama-era memos that encourage prosecutors to avoid seeking inordinately harsh sentences for low-level drug offenses.

ATTORNEY GENERAL JEFF SESSIONS: Going forward, I have empowered our prosecutors to charge and pursue the most serious offense, as I believe the law requires, most serious, readily provable offense. It means that we’re going to meet our responsibility to enforce the law with judgment and fairness. It is simply the right and moral thing to do. … And we know that drugs and crime go hand in hand. They just do. The facts prove that so. Drug trafficking is an inherently dangerous and violent business. If you want to collect a drug debt, you can’t file a lawsuit in court. You collect it with the barrel of a gun.

(the rest of an excellent discussion  is here)

Now let’s parse Sessions’ statement for just the ten seconds it deserves.  We have laws that allow us to punish people for a legislatively created crime.  Let us harshly punish these criminals who are, by definition, committing crimes, and often deadly crimes in furtherance of their other crimes.  “It is simply the right and moral thing to do,” says the moral dwarf, simply, citing irrefutably circular logic based in an unamended Nixon era law. 

I’ve often thought the proper term to refer to an outspoken homophobe is, simply, “fucking homo,” though I know it would not be politically correct to do so — as well as offensive to my gay siblings.  Think about it, though.   A loud anti-Semite should be publicly referred to (by Jews, of course, only by Jews, yo) as often as possible as a “fucking kyke”, I think.    What would hurt these hateful types more than constantly being referred to as what they hate? 

Tempting as it is to call the racist Attorney General, our nation’s top law enforcement official, a “nigger” (and what could be a crueler blow to the pride of this prissy, racist bitch of the southland?) I’ll refrain in the interests of not alienating anyone who would be offended by the objectively offensive term.   What would be the point of my giving such offense, suh?  It would simply not be the right and moral thing to do. 

Then again, right and moral are such problematic terms, as we see every day.   And mala in se and mala prohibita are often two very, very different things, the latter often driven by political calculation, preservation of privilege and perpetuation of lack of same.   Look at our prison population for a moment, and see the disproportionate lock down and disenfranchisement (another desired outcome by the Sessions crowd) of minority criminals who pled guilty to selectively enforced mala prohibita involving randomly criminalized substances

Makes me wanna holler.

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