'Too Much Law' Gives Prosecutors Enormous Power To Ruin People's Lives

In a new book, Supreme Court Justice Neil Gorsuch describes the "human toll" of proliferating criminal penalties.

"Criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something," Supreme Court Justice Neil Gorsuch observed in 2019. Gorsuch elaborates on that theme in a new book, showing how the proliferation of criminal penalties has given prosecutors enormous power to ruin people's lives, resulting in the nearly complete replacement of jury trials with plea bargains.

"Some scholars peg the number of federal statutory crimes at more than 5,000," Gorsuch and co-author Janie Nitze note in Over Ruled: The Human Toll of Too Much Law, while "estimates suggest that at least 300,000 federal agency regulations carry criminal sanctions." The fact that neither figure is known with precision speaks volumes about the expansion of federal law.

Literally volumes. "By 2018, the U.S. Code encompassed 54 volumes and approximately 60,000 pages," Gorsuch writes, while "the Code of Federal Regulations spanned about 200 volumes and over 188,000 pages" as of 2021.

Since keeping up with all that law is a challenge even for experts, the rest of us cannot hope to know exactly which conduct is a crime, even though "fair notice" is a basic requirement of due process. The civil liberties lawyer Harvey Silverglate has suggested that "the average busy professional in this country" may unwittingly commit "several federal crimes" every day.

And that's just federal law. Thanks to the vast trove of potential charges, Silverglate observes, quoting a warning from Justice Robert Jackson, "prosecutors can easily succumb to the temptation of first 'picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.'"

Former President Donald Trump says that is what happened to him. His 34 felony convictions for paperwork violations stemming from his hush payment to a porn star provide evidence to support that complaint.

Because the same conduct can be construed as multiple violations of state or federal law, prosecutors can pressure defendants to plead guilty by threatening to throw the book at them. Although Special Counsel David Weiss initially was prepared to drop a federal gun charge against Hunter Biden under a diversion agreement, for example, he ultimately prosecuted the president's son for three felonies, all based on the same gun purchase, with combined maximum penalties of 25 years.

Why the change? After the diversion agreement and a plea agreement resolving tax charges fell apart, Biden decided to make the government prove its case in court. Exercising his Sixth Amendment right to trial by jury came with a stiff penalty.

Something similar happened to Aaron Swartz, a young computer programmer, entrepreneur, and internet "hacktivist" who, apparently frustrated by limits on information he thought should be freely available, downloaded articles from JSTOR, an online academic library. When Swartz was caught, he returned the articles, and JSTOR considered the matter resolved.

Federal prosecutors nevertheless "charged Aaron with wire fraud and three counts under the Computer Fraud and Abuse Act of 1986," Gorsuch writes. And when Swartz declined to plead guilty, "prosecutors added another nine counts to their charges against him, exposing him now to decades in prison and millions in fines." Swartz committed suicide a few months before his trial was scheduled to begin.

As a result of such pressure, Gorsuch notes, about 97 percent of federal felony convictions and 94 percent of state felony convictions are based on plea agreements. Trial by jury, which the Framers viewed as an essential bulwark against tyranny, plays only a marginal role in our current criminal justice system.

The more juries are needed as a check on prosecutorial power, in other words, the less likely they are to serve that role. "The Framers really believed in juries," Gorsuch noted in an interview with New York Times columnist David French. "I mean, there it is in Article III. There it is in the Sixth Amendment. There it is in the Seventh Amendment. They really believed in juries, and we've lost that."

© Copyright 2024 by Creators Syndicate Inc.

Comments

[IceTrey]

Coercion should be the only illegal action because it’s an objectively immoral violation of our natural right as sapient beings to liberty.

[Stupid Government Tricks]

Except how do you punish those who coerce?

One answer is that you mean aggression or something similar only, not all coercion. Self-defense is fine. But that runs into the problem of punishing a murderer or robber after they've been found guilty of the crime. What if they won't even participate in the trial -- do you drag them in anyway? Neither is self-defense any more.

Another answer is pure reputational systems. Word gets around that Joe is a thug who doesn't honor contracts, pay debts, or otherwise behave like an adult. But that only works in tiny communities, 50 people at most. It's no good when people can move around so far and so fast, and swindle people over the internet.

My solution is that the verdict for all crimes is restitution for all costs -- lost wages, travel accommodations, lawyers, detectives, all that hired help, every expense that is due to the crime. And if someone won't pay his verdict debt, they are outlaws, and cannot file charges for anything less than their outstanding verdict debt. This allows everybody else to steal from them, as long as the stolen value is less than the outlaw debt.

And if someone won't cooperate in resolving these disputes, they are like a child who throws a tantrum in the Wal-Mart parking lot. The adults finish the case without them, treating them as wards of their guardianship, of course documenting the hell out of it.

This same guardianship applies if they are violent or otherwise a threat to public safety, like a serial killer or rapist or burglar. It would not apply to, say, an embezzler, because employers can easily just not hire them.

[Stupid Government Tricks]

Another thing my chartertopia does is do away with all laws. The only crime is basically violating self-ownership -- don't hurt people and don't take their stuff. There's no need to separate laws against shoplifting, robbery, burglary, grand theft auto, embezzling, conversion of a client's funds, bank robbery, defrauding an innkeeper, etc etc etc. It all comes down to dollars of restitution, and if your theft includes assault, well, that's more damages too.

Fraud is not a crime. It is evidence of the associated crime, but not a crime itself. Whether you steal my wallet by stealth, at gunpoint, or by pretending to be someone you ain't, the theft is the same.

Really, "don't hurt people and don't take their stuff" covers all real crime.

[IceTrey]

Hurting people and taking their stuff are forms of coercion or initiating force.

[Fire up the Woodchippers! (5-30 Banana Republic Day)]

Please enlighten us as to how an individual like Jeffrey Dahmer, or say MS-13 thugs can be dealt with in a non coercive manner.

[IceTrey]

Deterrence which is retaliatory force.

[IceTrey]

Retaliatory force. Murderers and robbers are already dragged in to be tried and punished.

[Stupid Government Tricks]

How do you force suspects to participate? They aren't convicted yet, so presumed innocent, and if coercion is justified only against the guilty, is it justified against suspects?

[IceTrey]

With retaliatory force i.e. deterrence. The justice system would work the same way investigate, gather evidence, issue warrants etc. it's just that actions that don't involve coercion, drug use for instance, would no longer be illegal.

[Stupid Government Tricks]

"It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read." -- James Madison

"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted -- and you create a nation of law-breakers -- and then you cash in on guilt." -- Ayn Rand

[TJJ2000]

Maybe someday SCOTUS will realize what their job is and cancel close to 90% of it which is entirely UN-Constitutional as well as getting rid of 87% of the Nazi-Agencies in the process.

OMG... The disaster of having a *real* USA instead of a Nazi-Empire pretending to be a USA. /s

[Reshufflex]

Well, the anti-Chevron doctrine case is a good start. It smacked down the deep state bureaucrats, the regulators, and reminded them that they aren’t the law.

Maybe there’s hope.

[Reshufflex]

-Exercising his {Hunter’s} Sixth Amendment right to trial by jury came with a stiff penalty.-

Please. Hunter wanted total immunity. He tried to shoehorn it, sub rosa, into his agreement, and the judge smelled a rat.

The prosecution got caught in the charade and had no choice but to de facto void the plea deal and concomitant diversion agreement.

Hunter wasn’t penalized for exercising his rights; he was penalized for his sense of entitlement and effort to leverage his name.

[Quo Usque Tandem]

"Criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something," Supreme Court Justice Neil Gorsuch observed in 2019.

"Show me the man and I'll show you the crime."

Lavrentiy Beria, the most ruthless and longest-serving secret police chief in Joseph Stalin’s reign of terror in Russia and Eastern Europe, bragged that he could prove criminal conduct on anyone, even the innocent.

[LIBtranslator]

"do away with all laws." Nietzsche warned that "There is a perfect likeness between Christian and anarchist: their object, their instinct, points only toward destruction." So again we have the Murry Rotbutt communists sabotaging our 1972 platform under a fake NAP with inverted priorities like child molesting. Meanwhile Christian National Socialists inject hatred of women and prohibitionist enslavement in violation of 13A. Planks pandering to both gangs wrecked the steeply increasing vote share leading to our replacing one of the looter Kleptocracy parties.

[Uncle Jay]

"Too much law?"
There's no such thing.
Just ask Stalin, Hitler, Mao, Pol Pot, Castro or their apologists.

[MoreFreedom]

This was covered in Reason when they reviewed "Three Felonies A Day". Laws are so contradictory, that businessmen routinely break one law or another. There are 36 hits for it in Reason's search feature. This is what the Chinese do: they target some rich person, charge them with a crime, and make they pay a large part of their fortune to obtain their freedom.