Greenfield, a criminal defense attorney out of New York, laments the decline of the mens rea requirement in crimnal law, which is the principle that punishment requires personal fault. He rightly argues that:
legislative bodies have exhausted every possible permutation of malum in se offenses, the ones everyone knows or should know are wrong without having to be told in explicit detail, they have increasingly crafted malum prohibitum to be used as a regulatory framework to control more behavior that isn't inherently wrong, but that they have decided for whatever reason shouldn't be done. These offenses don't necessarily involve any moral fault on the part of the perpetrator, but rather a choice between various options, one or more of which has been denominated a crime.Bingo! It's exactly that dynamic that causes a state like Texas to wind up with eleven different oyster-related felonies on the books!
Greenfield properly dislikes "The fact that the conduct was innocent or negligent no longer seems to deter the demand for punishment. It's all about the outcome and that every harm must have a crime to combat it."
Meanwhile, at his excellent blog Defending People, Mark Bennett opines on modern tradeoffs between freedom and safety, drawing on sources as disparate as philosophical debates among the Founding Fathers to modern brain science and the impact of fear and anxiety on policymaking. Bennett grants that safety, to an extent, is a prerequisite for liberty, but argues that the threshold after which liberty becomes the more important value is an extremely low one:
There's a lot more great stuff in both pieces and I'd encourage you to read them both. These are discussions which are almost impossible to imagine occurring in the mainstream media, so thank God for the blogosphere where the only limits on discourse are the boldness, knowledge, and imagination of the writer, not any ideological filter.
Do we have to have a degree of safety to enjoy freedom? Sure. The bottom level on Maslow’s Hierarchy has to be satisfied. But guess what: there’s no sabretooth breathing down your neck. The barbarians are not at the gates of your condo, which is fortunate because if they are you’re on your own — the government is busy popping hookers and crack users, and won’t show up when you call.
The costs of relying on government to keep us safe are manifold. We have to pay for it, which is in itself a deprivation of liberty; since government is inefficient and blows dangers out of proportion we pay a lot more than it would cost us to do it ourselves. We have to give up freedom from governmental intrusion in our own lives, because government can’t discriminate ab initio between the good guys and the bad guys and requires the power to meddle as much in our affairs as in those of the ones who might do us harm.