Thomas Aquinas on the criminal law

Now, as the governor makes weekly news by signing bills from the recent legislative session, we have a slate of new laws and punishments we shall be living under.

Unfortunately, the new stuff is often reactionary tinkering. By that, I mean two things:

making crimes of every human vice; and

punishing small crimes as if they were big ones.

This blog has posted numerous examples of such efforts:

While not all these bills make it into the books, we clearly have an itch to make society perfect, to make everyone be nice. And if we have to make not-being-nice a felony, well–by heaven–we will.

We often hear the charge that Christians try to impose their morality on everyone else. But the Christian tradition is one of restraint; in punishing only serious evils that harm others.

St. Thomas Aquinas, in his Treatise on Law in the Summa Theologica, answers the question of whether human law should repress all vices. He taught that demanding too much of people did not make them better, and would likely make them worse:

“[L]aw should be ‘possible both according to nature, and according to the customs of the country.’ Now possibility or faculty of action is due to an interior habit or disposition: since the same thing is not possible to one who has not a virtuous habit, as is possible to one who has. Thus the same is not possible to a child as to a full-grown man: for which reason the law for children is not the same as for adults, since many things are permitted to children, which in an adult are punished by law or at any rate are open to blame. In like manner many things are permissible to men not perfect in virtue, which would be intolerable in a virtuous man.

Reply to Objection 1: Audacity seems to refer to the assailing of others. Consequently it belongs to those sins chiefly whereby one’s neighbor is injured: and these sins are forbidden by human law, as stated.

Reply to Objection 2: The purpose of human law is to lead men to virtue, not suddenly, but gradually. Wherefore it does not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz. that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils: thus it is written (Pr. 30:33): “He that violently bloweth his nose, bringeth out blood”; and (Mt. 9:17) that if “new wine,” i.e. precepts of a perfect life, “is put into old bottles,” i.e. into imperfect men, “the bottles break, and the wine runneth out,” i.e. the precepts are despised, and those men, from contempt, break into evils worse still.

Reply to Objection 3: The natural law is a participation in us of the eternal law: while human law falls short of the eternal law. Now Augustine says (De Lib. Arb. i, 5): “The law which is framed for the government of states, allows and leaves unpunished many things that are punished by Divine providence. Nor, if this law does not attempt to do everything, is this a reason why it should be blamed for what it does.” Wherefore, too, human law does not prohibit everything that is forbidden by the natural law.

Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.”

Some crimes really ARE too small to prosecute

When I was a prosecutor, we had a form that we filled out whenever we decided not to file a case. There was a list of official reasons, from which we were expected to choose the main reason why the case was not being filed.

There were the usual choices you might expect, like:

  • insufficient evidence

  • witnesses not credible

  • evidence not admissible, etc.

But there was one official reason that we occasionally used, even when the charge was perfectly good. It was the one that stated that prosecution would be in the “trivial interests of justice.”

I was reminded of that particular reason when I read this news story from Des Moines:

Iowa man charged with throwing candy at police


It seems the officer was speaking to a witness, when–according to the police report–the officer was assaulted by another man who hit him on the shoulder with an M&M.

Now I know that assault of a law enforcement officer is not a laughing matter, but sometimes . . . well I just wonder if this wasn’t one of those “trivial interests of justice” situations.


New Legislation: Missouri pardons all sex offenders … just kidding.

It’s always stimulating to look over the summary of the bills passed by the legislature each year. It’s a mix of legal and financial tweaks, pet projects, appropriations, memorials . . . well, here it is (some bills still await the governor’s signature):

Click Here–> Bills passed – 2008 session

Some highlights include:

SB 991 – Establishes the ice cream cone as the official state dessert

HB 1784 – Requires any American or Missouri flag flown on state property to be manufactured in the United States.

Of course, what legislative session would be complete without a bill further ghetto-izing everybody’s favorite whipping boys (and girls). That’s right, registered sex offenders. Senate Bill 714 will keep them on their toes. For example:

Henceforth, sex offenders, on Halloween, are required to:

    1. avoid all Halloween-related contact with children,
    2. remain inside their residences between 5 and 10:30 p.m. unless there is just cause to leave,
    3. post a sign stating, “No candy or treats at this residence”, and
    4. leave all outside residential lighting off during the evening hours.
  1. That’s just a sample. There is LOTS more.


Missouri Highway patrol’s stop and search was illegal – again

A new case out of the Missouri Court of Appeals, State v. Ross is another in a series of Highway Patrol cases where the defendant was charged with drug possession after an illegal detention and search of his car. The surprise is not that patrol officers have done this, but that there are prosecutors who–to this very day–still prosecute such cases.

The Defendant, Ross, was driving a rental car and got stopped for speeding. The patrolman pulled him over, put Ross in his patrol car, wrote Ross a warning ticket and told him he was free to go. At that point the legal traffic stop was officially over.

As Ross walked back his car, the officer got out of his car and called out to Ross. Ross and the officer talked a bit. Ross agreed to answer some more questions, mostly related to Ross’s opinions about drug use. Finally, the officer asked if he could search the car. Ross said no, not unless his passenger agreed.

The officer asked the passenger for permission to search the car. He refused. The officer called for the drug dog. An hour after the traffic stop began, the dog arrived and sniffed out marijuana in the trunk.

Ross was arrested, along with his passenger. The prosecutor filed the charge, a defense motion to suppress was heard and the evidence was thrown out by the court because the continued detention of the defendant was illegal. That trial court decision was upheld by the Missouri Court of Appeals on June 3, 2008.

By now, I expect police and prosecutors have figured this out:

When an officer makes a legal traffic stop, finishes the stop, and releases a person–and if they have no further grounds on which to detain them–then THEY MUST LET THEM GO.

They cannot keep a person any longer under the pretense of having a chat between friends, not unless the driver clearly understands he is free to leave and feels no compulsion to stay and answer questions. Such would seldom be the case when one party is an unarmed citizen and the other is a uniformed & armed police officer who has pulled the citizen over by threat of force.

Obviously, this rule is violated even more when the police press even harder and ask to search and are refused. And then they detain the driver or the car while they wait for a drug dog. There can be no excuse for this. None.

The Prosecutors fought this case for over four years before they finally lost. (That’s assuming they dismiss the case now that their evidence has been tossed out for good. As of this writing, they still have not dismissed the case, per casenet in Franklin County #04AB-CR00090).

I hope this is the end of this sort of thing. Better a few miscreants escape punishment than the rest of us live under tyrants. It’s called liberty.