Criminal Law

Dangers of a World Where "Almost Anyone Can be Arrested for Something"

A recent dissenting opinion by Supreme Court Justice Neil Gorsuch highlights some of the dangers of the enormous scope of modern criminal law.

|The Volokh Conspiracy |

Supreme Court Justice Neil Gorsuch.

In a recent dissenting opinion, Supreme Court Justice Neil Gorsuch warns of the dangers of the modern expansion of criminal law to the point where "almost anyone can be arrested for anything":

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age. The freedom to speak with-out risking arrest is "one of the principal characteristics by which we distinguish a free nation." Houston v. Hill, 482 U. S. 451, 463 (1987).

The immediate point of Gorsuch's argument is to criticize the idea that having "probable cause" for an arrest should automatically invalidate a claim that the arrest violated the First Amendment because it was being used as a tool to punish dissenting speech. He is absolutely right on that point.  For reasons I discussed here, the vast modern expansion of both criminal and civil liability poses a more general threat to the rule of law:

Lavrenti Beria, the infamous head of the Soviet secret police under Joseph Stalin, supposedly once said, "Show me the man and I'll show you the crime." In the Soviet Union, the regime could always find some crime to pin on anyone it chose to target.

As a general rule, it would be silly to equate the modern United States with a mass-murdering totalitarian state. But in this one respect, the two regimes are more similar than we would like them to be….

This sad state of affairs is deeply at odds with the rule of law. Whatever else that concept means, it surely requires that ordinary people be able to readily determine what laws they are required to obey, and that whether or not you get charged by authorities depends more on objective legal rules than the exercise of official discretion. Unfortunately, neither holds true in the United States today….

Scholars estimate that the vast majority of adult Americans have violated criminal law at some point in their lives. Indeed, a recent survey finds that some 52 percent admit to violating the federal law banning possession of marijuana, to say nothing of the myriad other federal criminal laws. If you also include civil laws (which, though theoretically less severe than criminal laws, often carry heavy fines and other substantial penalties), even more Americans are lawbreakers…

Most Americans, of course, never face punishment for their lawbreaking. But that is true only because the authorities lack the resources to pursue most violators and routinely exercise discretion in determining which ones are worth the effort….

In this way, the rule of law has largely been supplanted by the rule of chance and the rule of executive discretion. Inevitably, political ideology and partisanship have a major impact on the latter. For example, federal law enforcement priorities are very different under Trump than they were under Obama.

Even the law itself is often interpreted differently, depending on who is in power…. As Supreme Court Justice Neil M. Gorsuch puts it, an agency can "reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail [in court]." The enormous scope of federal regulatory law enables agencies to exercise extensive discretionary authority over many aspects of the economy and society.

In my earlier post on this subject, I consider a number of strategies for alleviating this problem, such as trying to enforce all laws to the hilt (thereby eliminating executive discretion), and curtailing judicial deference to administrative agencies (thereby reducing the extent to which the same laws are interpreted differently based on which party is in power). I am skeptical that either will do the trick (and the former is likely impossible). Ultimately, the best solution is to cut back on the scope and complexity of law, though I  fear we may not have the political will to do it:

The only way to make major progress toward establishing the rule of law would be to greatly reduce the scope and complexity of legal rules. In a world where the scope of law is strictly limited, officials might have sufficient resources to go after a much larger percentage of lawbreakers. And if the law were limited to those areas where there was a broad consensus that the conduct in question should be illegal, there would be less incentive for officials to engage in selective enforcement based on the priorities of the party in power. If federal or state authorities engaged in such shenanigans with respect to laws that enjoyed widespread bipartisan support, they would risk provoking a major political backlash.

There is no way to completely eliminate executive discretion over law enforcement or to make the law completely transparent to laypeople. But cutting back on the amount and complexity of law can help us make progress toward those goals.

Of course, it may be we do not value the rule of law enough to sacrifice any other objectives to strengthen it.  The laws on the books are not there by accident. Most were enacted because they were supported by majority public  opinion, influential interest groups or some combination of both.

Perhaps we just do not care about the rule of law enough to eliminate any substantial number of current laws and regulations — especially those supported by our side of the political spectrum. The rule of law may be less important to us than the rule of  men whose agenda we like. If so, we might have more in common with Lavrenti Beria than we like to think.

UPDATE: I accidentally failed to include a link to my earlier post on this subject in the first place where it is mentioned above. I apologize for any confusion, and have now corrected that error.

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46 responses to “Dangers of a World Where "Almost Anyone Can be Arrested for Something"

  1. An obvious move is for the Supreme Court to reverse its completely aconstitutional and ahistoric ruling in Leeke v. Timmerman, restoring the common law right of any member of the people of the United States to prosecute crimes against the people of the United States.

    You’d see a swift decline in the number of criminal laws once Congressmen and their friends and family could be indicted by people not under the control of political appointees.

    1. Which criminal laws do you think they would repeal?

      1. The federal one against “making false statements,” for one.

      2. It is not really the laws per se, it is the way they are applied by corrupt cops and politicians. As long as the police investigate themselves for their crimes, and there is no punishment for DA’s and Attorney Generals bringing false charges that is not going to change.

  2. I wonder who you’re quoting here “almost anyone can be arrested for anything” Gorsuch didn’t write that. He wrote “almost anyone can be arrested for something”

    1. You can pin “something” on me but you’ll never get me for “anything.”

  3. This brings an interesting contrast with the rather “wide” obstruction of justice guidelines, and its application to Trump (and potentially others).

    The evidence for Trump’s supposed obstruction of justice falls in two broad categories.
    1. Actions he could lawfully take or contemplate taking as POTUS, but if the “intent” was “corrupt”, might be obstruction of justice.
    2. Public statements made about an ongoing investigation and/or targets thereof.

    Now, let’s look at the implications of this very broad interpretation of Obstruction of Justice.

    1. If a US Senator calls for impeachment, or comments on an investigation, is that a public statement on an ongoing investigation that is designed to potentially influence that investigation? Can this be interpreted as Obstruction of Justice?

    2. If a group of US Congressmen hold an official in contempt, because he refuses to break the law, is that designed to influence an ongoing investigation, in a potentially corrupt manner?

    Consider these questions, when considering how broad a law, and its enforcement can be.

    1. You seem to be implying that obstruction of justice, as currently interpreted, is so overbroad that it implicates constitutional protections and separation of powers.

      1. When applied to the President’s lawful exercise of his control over the DOJ, yes.

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    2. Yes. I was listening to a “Commentary” blog in which one of the participants read out the definition of obstruction, and I thought that according to the definition just expressing an opinion could constitute obstruction. Expressing an opinion in a newspaper even more. It seemed more like a definition that China or North Korea might use. But here it is in the U.S.

  4. “Most were enacted because they were supported by majority public opinion, influential interest groups or some combination of both.”

    So. . .what’s the problem?

    Aren’t We the People in charge?

    Additionally, I’d say (without any supporting evidence), that many/most laws are enacted as a reaction to some incident.

    The plane crashed, the large building burned, somebody lied and took people’s money under false pretenses, etc.

    Perhaps many/most of laws are over-reactions.

    Additionally, we do see laws being reduced when their is enough public support (e.g. marijuana usage/possession, at least at the state level).

    1. “Additionally, I’d say (without any supporting evidence), that many/most laws are enacted as a reaction to some incident.”

      I agree with apedad that this is a huge problem.

    2. re: “Aren’t We the People in charge?”

      No, actually we are not. That’s one of the main priorities of the Constitution – to explicitly constrain the things that We the People can do to each other.

      1. Nobody has alleged that disorderly conduct and resisting arrest laws are unconstitutional. Neither involves “influential interest groups”. They aren’t the sort of laws in desuetude. The consequence of adopting Gorsuch’s dissent is that a person who speaks out against police officers is incapable of being arrested for disorderly conduct and resisting arrest.

        1. I’ll take that as the lesser of the evils.

        2. Well, of course arresting someone for resisting arrest makes no sense. (Which is not to deny that it routinely happens.)

      2. “Aren’t We the People in charge?”

        No, actually we are not. That’s one of the main priorities of the Constitution – to explicitly constrain the things that We the People can do to each other.

        Rossami, that misunderstands the American system of government. The constitution is never sovereign. Still less is the government sovereign.

        When you invoke “We the People,” you are not talking about people as individuals, living day to day as the subjects of the government. You are talking instead about the people in their joint capacity, as the nation’s sovereign, which rules the government. As always, in every system of government, the sovereign is totally in charge.

        Not even the constitution can constrain the sovereign. It is the other way around—the constitution is the sovereign’s decree, to which the sovereign itself is not subject. At any time, and for any reason, or for no reason, the sovereign can alter the constitution, using any means it finds sufficient (the sovereign is not constrained to use means set forth in the constitution). The sovereign can ignore the constitution, abolish the constitution, replace the constitution, or do without—all at the sovereign’s pleasure. Indeed, one of the defining marks of any sovereign is that it rules at pleasure, and without constraint.

        It was the founders’ view that every system of national government, however constituted, depended for its existence and stability on the backing of an all-powerful and unconstrained sovereign. To have a limited government, there must be some power greater than government, to do the limiting. Likewise for the task of oversight, to make the government do the things it is supposed to do. Among the founders, James Wilson is a particularly good source for discussion of these topics.

        1. re: “The constitution is never sovereign.”

          True in the trivial sense that We the People can always change the Constitution. False in the sense implied by apedad that the majority can pass any silly old rule based on the passions and biases of the moment just because “majority rules”.

          1. Rossami, you seem still to be trying to conflate the “majority,” a term typically associated with government, and thus within constitutional constraint, with “We the People.” The latter is unmistakably the sovereign (which may or may not comprise an actual majority), and thus always outside constitutional constraint.

            The sovereign’s initiative to intervene in government, based on any reason at all, including passions and biases of the moment, will never prove trivial. Any supposition you have that the constitution can constrain the passions and biases of the sovereign will either prove false, or if true, portend a revolution—with a new sovereign taking the place of We the People—or, alternatively, with an interval of no sovereignty, or violently contested sovereignty, to follow.

  5. See also the Heritage Foundation’s book, “One Nation Under Arrest”. Others have found inaccuracies in it but it’s still alarming.
    Once someone is arrested, unless they can afford bail and a defense attorney the pressure for a plea deal is difficult to resist.

  6. I don’t buy that the law can’t be made completely transparent to lay people. I would simply amend the Constitution to make the rule of lenity absolute.

    1. What if the law can’t work that way? Might it be more realistic to suppose almost all laws will create at least 3 sets of conduct, one being the set of things which are clearly legal, the second being the set of things which are clearly illegal, and the third set being the set of things which fall in between, for which legality or illegality must depend on factual distinctions particular to cases.
      Doesn’t experience suggest it will prove impossible to draft laws which in their operations never generate that third set? Or do you suggest an absolute rule of lenity simply takes that set into account, and reassigns its members to the set of legal conduct? If so, it sounds a bit like question begging.

  7. Gorsuch, impeding the administration of justice by casting such scurrilous asperities.

    He has a good point — looking to the analogous tort (the action in Trespass for false imprisonment) imports a false exemption where there’s probable cause, but he should have taken it a step further to find the analogous remedy of the time (action on the case for abuse of process) which apparently applied even when there was a valid warrant. Malice was always an element in these actions, so there’s nothing novel there. Odd vehicle for the general proposition that probable cause always justifies an arrest, though, since breach of the peace has always justified an arrest (a point made at the oral arguments that seems to have faded away in conference).

    Instead, they go with a similarly situated comparator test — I eagerly await the multi-step burden shifting jurisprudence soon to follow in the circuits.

  8. “[T]hat ordinary people be able to readily determine what laws they are required to obey” . . . looks like Somin would have the elites continue to make their own determination.

  9. One huge problem is the number of Federal crimes that have never been enacted by Congress. You can’t find these criminal offenses anywhere in Title 18 of the United States Code – or anywhere else in the U.S. Code. They are hidden away in the CFR, adopted by any of the various alphabet soup agencies. And some of them aren’t even clearly set forth in the the CFR, and if you are in the business of importing or exporting goods, you might have to be an expert in foreign law to avoid an inadvertent criminal offense. I know of one company where three officers and the corporation were all charged with criminal violations of export regulations for selling computer software, and you’d need an army of lawyers to tell you just what you can and can’t export. There was another case of a Florida importer of seafood that was sentenced to prison for violating import regulations – his crime was accepting live Caribbean lobsters from a Dominican Republic exporter who failed to use packaging that complied with regulations of the Dominican Republic – as if an importer of Caribbean lobsters should know what OTHER countries require on packaging live lobsters!

  10. “This sad state of affairs is deeply at odds with the rule of law. Whatever else that concept means, it surely requires that ordinary people be able to readily determine what laws they are required to obey.” And yet, the Conspirators are on record asserting that an ordinary person can readily determine that dancing with headphones at the Jefferson Memorial violates a regulation which prohibits “picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers.” It’s hard to take Prof. Somin’s complaints seriously.

  11. >The only way to make major progress toward establishing the rule of law would be to greatly reduce the scope and complexity of legal rules.

    SCOTUS could force the issue by extending void-for-vagueness rule to everything the federal government does. There is some logic to it – it’s hard to say you have basic due process if the law can change depending on what official had for breakfast that morning.

  12. . . . an agency can “reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail [in court].”

    Yikes! That seems to claim it’s all just arbitrary. No more politics? If Gorsuch suggests the law should not be changeable based on a shift of political winds, what do we get instead? Rule by the courts?

    1. The Law should be created solely by Congressmen who debate it in their chambers, and then send the bill to the President.

      It shouldn’t be written by unelected bureaucrats who blur the lines between the executive, the legislative, and sometimes even the judicial branches.

      How hard is this to understand? Apparently, it’s *very* hard, because the Supreme Court has ruled lawmaking by bureaucrat Constitutional, even though the Constitution doesn’t give Congress the authority to delegate their lawmaking abilities to the Executive Branch.

  13. Then there is the corollary One may beat the rap but you cannot beat the ride!. Remove immunity!

  14. There is an element of “creep” involved in public sentiment and law. When “authorities” are aware of law breaking and chose to not enforce laws, sentiment can be that authorities are not doing their jobs or that the laws are improper to begin with anyway. When police policy is to not respond to misdemeanor theft reports, taking small stuff reverts to violating a norm rather than violating a law. And the norm becomes “take anything not nailed down, and if it can be pried up it wasn’t nailed down well enough.” What laws are enforced are often driven by funding and resources. It costs little for special interests to induce interested lawmakers to create laws and a costs a lot more to enforce them. Often new laws are designed to codify sentiments without intent to enforce the laws. To that end, new laws are sometimes used to attempt to drive new norms over time – a reversal of the textbook premise of lawmaking as discourse and norming as the basis of laws.

  15. You just described might makes right.

    There is nothing noble in this dangerous raging mob rule. The whole point is to stop demagogues from using their charisma to take over by swaying mob rule.

    Again, there is nothing noble about this per se.

  16. So true. For example, the Democrats could accuse you of being a Russian asset, and colluding with Russia to interfere in elections when it was in fact them that did that. Then they could spy on you and launch a multi-year investigation and, even if you’re “cleared”, hit you with obstruction charges for expressing your objections to the investigation.

  17. “History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.”

    I re-read this and it really is a bunch of boogy-man fluff.

    1. That’s exactly what a would-be tyrant would say.

    2. “I re-read this and it really is a bunch of boogy-man fluff.”

      It seems that your reading comprehension skills are sorely lacking.

  18. Idiots: Cops shouldn’t be allowed to arrest someone unnecessarily physically escalating a situation.

    Also idiots: I can’t believe cops let a guy with a knife grab a hostage.

    Choose one: either cops have the discretion to physically restrain, including arrest, people who are physically escalating a situation or you accept YOUR constraints on cops directly led to the unnecessary killing of Elizabeth Tollison.

  19. To make it possible to simplify the law, I like the idea (proposed by several other people elsewhere) that we need a Chamber filled with people whose incentive is to repeal law. Call it the House of Repeals, and they can repeal *any* Federal law or regulation, and that such repeals can be done by mere majority, but require veto-proof majorities in the House and the Senate to re-instate.

    This House of Repeals can have the exact same requirements for membership for the House of Representatives.

  20. “Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In heaven there will be no law, and the lion shall lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In hell there will be nothing but law, and due process will be meticulously observed.”
    ― Grant Gilmore, The Ages of American Law

  21. […] Gorsuch highlights that there are so many criminal laws that almost anyone can be arrested for somet… Again, not an accident. […]

  22. […] Dangers of a World Where “Almost Anyone Can be Arrested for Something” A recent dissenting opinion by Supreme Court Justice Neil Gorsuch highlights some of the dangers of the enormous scope of modern criminal law. […]

  23. […] to a point where “almost anyone can be arrested for something.” And the implications? [Ilya Somin] Earlier on Nieves and the retaliatory-arrest case that preceded it last year, Lozman v. Riviera […]

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