Robert E. Wright writing at American Institute for Economic Research has a helpful summary of the recent Wisconsin Supreme Court case overturning the safer-at-home order. While as a practical matter the decision is less than perfect, I do think the justices got it right here when they point out that the safer-at-home order imposed criminal penalties without meeting the legal standard of what constitutes a crime:
Crimes created by the Legislature in statutes must have specificity in order to be enforceable. … Because Palm fails to understand the specificity necessary to a valid criminal statute, she also fails to understand that no less specificity is required of a rule to which criminal penalties are assigned.
In US law are three (or maybe four) elements of a crime:
- Mental state (Mens rea)
- Conduct (Actus reus)
That is, you must have the intention to commit a crime (#1), must engage in a criminal act or unlawful failure to act (#2), and these must happen at the same time (#3). The last element, causation, basically means that the act or omission resulted in harm.
In overturning the safer-at-home order, the justices argued (among other things) that the state failed to meet all three (or four) of the elements of an actual crime. This matters precisely because the state was treating (or threatening to treat) violation of the safer-at-home order as a crime.
(As an aside, while they are helpful to me as a pastor the county’s directives also seem to impose rather harsh penalties: “Violation of or failure to comply with this Order is a crime
punishable by fine, imprisonment, or both. (Wis. Stats. §§ 252.03 & 252.25) and a violation of Dane County Ordinance §46.25(1) and Madison General Ordinance §7.05(6) punishable by forfeiture.” Though I’m not a lawyer, I can’t help think these might not stand a legal challenge.)
The rule of law depends upon the confidence of the citizenry that the law is just and fairly applied. When otherwise legal acts are criminalized–but only for some individuals, under certain circumstances, people lose confidence in not only the law but the lawgiver.