Subtitled, when the going gets tough, someone always thinks we need more laws.

Even though legislators are beginning to realize that the cost of creating a crime a day isn’t bringing the electoral dividends of the past, that doesn’t mean that some quasi-academic isn’t going to continue to feed the public frenzy by pursuing the ignorant notion that we could have avoided all the nasty crimes that brought out economy down around us by creating more crimes.  Exhibit A, this op-ed at Newsday, We need a bigger gavel.

The writer, Eugene O’Donnell, is a former police officer and prosecutor, teaches law and police studies at John Jay College of Criminal Justice of the City University of New York.   If you were sitting at the breakfast table slurping your morning coffee, wouldn’t you think he knows what he’s talking about.  After all, he’s got the credentials.  But that’s not all, he also feels our pain.

As a young Brooklyn cop, I was amazed at the trivial infractions that could result in a citizen’s being tossed into a holding cell for a day or more. A subway passenger who held the door for another, or who carried a coffee onto the train, or even dozed off, could be arrested. Later, as a prosecutor, it was amazing to see how much effort went into pursuing even the softest offenders.

The proffered reason for enforcing these rules, which swept up hundreds of thousands of people, was the now famous “broken windows” logic, which held that unaddressed minor misconduct could foster serious crimes.

Oh yes, Eugene, yes.  Of course, it’s just a bit unclear what you mean by the effort that went into “pursuing even the softest offenders.”  No doubt you’re referring to officers giving summons to subway coffee criminals, who would then pay a fine and stop spilling coffee on the seats.  But yes, the reason predatory lenders and Madoff got away with it for so long is that we were out nailing sleepy people on the subways.  If only Bernie and some predatory lenders drank their lattes or took a snooze on the subway, then they would have been taught a lesson or two and we would all be safe, right Eugene?

From this ignominious start, O’Donnell goes for the jugular:

Unsavory business practices germinate in an atmosphere of secrecy and confidence that prosecutors will rarely come calling. Despite heralded prosecutions of a tiny handful of big-ticket schemers at Enron and WorldCom, federal prosecutors have proven far more adept at promising action against titans of fraud than delivering on it. Complicating efforts at cleaning up the mess: Few law enforcement officials have the skills necessary to even comprehend these intricate shenanigans. And one single fraud, such as the Bernard Madoff case, can tie up legions of agents and prosecutors, with the possibility that the larger the scam, the greater the likelihood of forestalling (or avoiding) detection and prosecution.

Not only should there be a robust rethinking of white-collar criminal laws, but much more expansive and creative penalties should be developed for pursuing whole corporate entities. How can a company composed of thieving employees award bonuses to those not directly connected, even when the fruits of the fraud contribute to the bottom line? Why can’t the taxpayer and the victims get back the value of bank accounts, second homes and luxury cars? Perhaps we should even create a special corporate criminal court and a national fraud agency, which can substitute for the current uncoordinated hodgepodge of law enforcement agencies.

Wait a second.  Didn’t you just say that the problem was all the cops busy busting the “softest offenders?”  Now you say the solution is a “robust rethinking of what-collar criminal laws.”  What is amazing is that you’ve managed to get it wrong on both ends, which O’Donnell should likely have little difficulty accepting, considering how easily he is amazed.  Cops cleaning up the subways had no connection with the enforcement of existing fraud laws, most of which were federal while he was obviously a local cop and state prosecutor. 

Where’s the part of your op-ed where you admit that you “don’t know nothing about birthin’ no babies,” Eugene?  From your starry resume, one thing is quite clear: You were nowhere near the parts of the system relating to corporate fraud, and hence would have no involvement in their enforcement.  You, dear Eugene, were part of the subway slurper side of life. Now be honest and ‘fess up.

Despite the obvious, that the messenger is clueless, the message remains troubling.  It serves to suggest that someone whose background in law enforcement and prosecution knows that our laws are weak and meaningless, and plays upon the pain of those defrauded to call for yet another round of harsher laws and penalties, as if that was the root of our problems.  It’s an H.L. Mencken moment, 

“For every problem, there is a solution that is simple, neat, and wrong.”

Is O’Donnell arguing that the potential 150 years for Madoff is insufficient?  As Jeralyn Merritt put it, should he have been subject to a sentence of “life plus cancer” before we can achieve deterrence?  There is lack of laws to handle the problem.  There is no lack of severe penalties to serve as a deterrence.  Our laws already have laws, enough to nail a corporate fraudster three ways to Sunday.  When will people who present as if they should know what they are talking about shut their damn mouths and stop feeding the public inane solutions, adding to the panic and pain by promoting ignorance?

There is, and always has been, an enforcement issue.  The machines of law enforcement that are supposed to keep an eye on regulated industry have been deferential.  This may be a product of campaign contributions, fear of destroying the economy by putting large corporations under negative scrutiny or perhaps just the sympatico relationship between the wealthy and the powerful.  The beat cops of the NYPD, who according to O’Donnell, are too busy harassing subway coffee drinkers, don’t spend much time walking the hallways of major corporations in search of corporate broken windows. 

Hundreds of millions of dollars are spent on law enforcement to protect against terrorism. Why not adopt a similar approach to suite crime? At the heart of the ongoing financial meltdown is loss of the trust and confidence of millions of Americans, who feel they cannot turn their backs on once-respected companies without being taken.

A nation that can dedicate the effort and focus to arrest an errant subway passenger can surely summon the tools necessary to dismantle individual and business racketeers. This is a good time for some well-directed anger. Now is the time to legislate – and prosecute.

And thus falls the other shoe.  It’s not bad enough that we’ve thrown hundreds of millions in the toilet to create the fiction of safety from terrorism, while eviscerating the civil rights of Americans in the process.  Let’s do the same to corporate America, because we surely have hundreds of millions of dollars sitting around doing nothing, and we certainly don’t need these nasty corporations providing goods, services and jobs, and it’s certainly the same as arresting the “errant subway passenger.” 

If O’Donnell was running for office, I wouldn’t begrudge him his lapse into lunacy as he would come by his pandering honestly.  But as a quasi-academic (as if John Jay College of Criminal Justice was a real school), it’s difficult to forgive his employment of at least one logical fallacy per sentence in order to promote the absolutely wrong solution to the problem du jour. 

But I save my strongest criticism for the Newsday editors, for publishing such irresponsible, ignorant and absurd tripe as this, knowing that it feeds the public’s misperception that all would be fixed if only our lawmakers would create more crimes.