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Thursday, June 16, 2011

The Least Free States: New York and New Jersey

A new study calls New York and New Jersey the "least free" states in the nation.

The Mercatus Center study is based on a variety of factors including regulatory policies, regulatory compliance and tax burdens, government spending and levels of government debt.

Although it is hard to quantify and could not be directly measured in this (or any) study, many parts of the nation suffer under a recession-driven prosecutorial career-ambition which results in a propensity to overprosecute certain actions which are arguably neither criminal nor harmful. I contend this is not driven so much by malice as by an organizational culture to "produce results," and in the current employment depression for lawyers, the need to enhance credentials to land any better-paying private sector job.  

There is another cause diminishing our freedoms which this study either ignores or fails to measure.  The prosecutorial culture -- embodied by many federal prosecutors and state attorneys general seeking to advance politically -- feeds an executive branch expansion of power in proscribing and punishing conduct which Congress and state legislatures often have declined to prohibit.  In short, the government's prosecutorial function becomes another often-out-of-control abuse by the bureaucratic class. 

Another nationwide problem is the overcriminalization of unintentional behavior, such as negligence. Your involvement in an accident can often result in an investigation that starts with the conclusion that you are guilty -- of something -- and proceeds to find anything that can be used to threaten you into pleading guilty -- to anything -- even if that "crime" is unrelated to the accident that put you on the radar.  The problem for society is that, with prosecutorial and investigative resources (e.g, manpower, technology) at a premium, every waste of resources means that "real crime" gets a pass.



Sadly, the Mercatus Center study ignores the roles of overcriminalization and the prosecutorial culture, which often seeks to use executive branch power to punish or deter behavior, in making us less free.  Although it is helpful, the study paints a portrait that is far from complete.

Eric Dixon is a New York lawyer who handles investigative and regulatory matters, business due diligence and sensitive matters for business owners, entrepreneurs, public figures including elected officials and candidates for public office.  Mr. Dixon works to protect the innocent.  Mr. Dixon can be reached at edixon@NYBusinessCounsel.com.

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