Parenting, Police, and Policy

As an NR reader of nearly 50 years’ standing and a subscriber for nearly as long, I write to take issue with two comments in James Copland’s otherwise thoughtful and enlightening piece “In Policing, Race Matters” (September 7).

First, Mr. Copland opines that “all Americans are petty criminals who unknowingly commit multiple felonies a day in our modern overcriminalized world.” I respectfully disagree.

I am quite familiar with Harvey Silverglate’s Three Felonies a Day, which explains this thesis in greater detail, but as an attorney, I also know the difference between malum prohibitum and malum in se: The former is illegal only because a law says it is so, while the latter is inherently evil. But for the First Amendment, for example, one might pass a law making it a felony to subscribe to National Review, but that would not in any meaningful or moral sense make me a “petty criminal.” Mr. Copland should withdraw the accusation.

Second, as an indisputably white man whose equally indisputably white father spent a year in reform school — the Ohio Penitentiary for Boys — for transgressions lost to history, let me disabuse Mr. Copland and his readers of the implication that it is only parents of black sons who must give their sons “the talk.”

From as early as I can remember, my father always advised all four of his sons that — if ever stopped by the police for any reason — we were just to say “Yes, sir,” “No, sir,” and to do what the nice man said.

Some of us did and some of us didn’t, but I have always found it to have kept me out of trouble.

David Applegate Huntley, Ill.

Mr. Copland responds: The letter questions my claim that a typical American “unknowingly commits multiple felonies a day.” As Mr. Applegate suggests, this claim relies on attorney Harvey Silverglate’s excellent 2009 book, Three Felonies a Day: How the Feds Target the Innocent. There are an estimated 300,000 federal crimes (no one knows for sure). States similarly have a host of regulatory crimes. And the overwhelming majority of these regulatory crimes were never voted on by elected legislators.

I discuss these issues in more detail in chapter 5 of my new book, The Unelected: How an Unaccountable Elite Is Governing America. The chapter is entitled “Criminalizing Everything.” It’s an important point not to ignore: Most Americans simply aren’t aware that they’re often breaking some criminal regulation that could potentially land them in hot water.

But Mr. Applegate is absolutely correct when he observes that these regulatory crimes tend to be malum prohibitum crimes, not crimes involving intuitively bad conduct. And I agree with Mr. Applegate’s implication that we shouldn’t think of these regulatory crimes as morally wrong in the way we do the intuitively bad conduct we most think of as criminal — murder, rape, assault, robbery, burglary, and the like.

That’s the point: Most people are not criminals engaged in intuitively bad conduct. And that’s true for both black and white Americans. Which is precisely why we should think about the disproportionate impacts black American men in particular necessarily face from police activities, even when those activities are warranted and race-neutral.