Review: Neil Gorsuch Says There Are Too Many Laws

No one knows how many federal crimes there are, the Supreme Court justice notes in Over Ruled.

"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 his new book Over Ruled, 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, while "estimates suggest that at least 300,000 federal agency regulations carry criminal sanctions." The fact that neither number is known with precision, they suggest, speaks volumes about the "unpredictable traps for the unwary" set by the government's ever-expanding rules.

To illustrate "the human toll" of "too much law," the book tells the story of Florida fisherman John Yates, whose grueling legal odyssey began with the charge that he had discarded undersized red grouper. That alleged act supposedly violated a law aimed at deterring the destruction of potentially incriminating financial records. Gorsuch also recalls the pretrial suicide of 26-year-old computer programmer Aaron Swartz, whom prosecutors threatened with "decades in prison and millions in fines" for downloading a bunch of articles from an online academic library without permission.

Over Ruled emphasizes how overmatched ordinary people are in disputes with bureaucrats empowered to write the rules under which they operate. Those nemeses include officials charged with dispensing government benefits, deciding whether immigrants can remain in the country, and enforcing the frequently arbitrary and petty restrictions inspired by COVID-19. Gorsuch also decries draconian prison sentences and mass incarceration, again illustrating how his supposedly right-wing instincts frequently overlap with progressive concerns. His compassion for people confronted by bewildering, absurdly punitive legal codes defies ideological stereotypes.

Comments

[Chumby]

The law enforcement - judicial industrial complex wouldn’t have it any other way.

[Juliana Frink]

Of course not. Show them the man, they'll show you the crime, from their handy list... I mean... database.

[Stupid Government Tricks]

Ritual over justice. Procedure over justice.

Lawyers like it this way.

https://reason.com/volokh/2022/07/19/two-kinds-of-laws-clear-and-ambiguous/?comments=true#comment-9605397

This is a necessary feature of good laws. Laws must be understandable in what they require, but not crafted with technical precision. The legislative process is neither equipped to anticipate all variations of conduct nor fast enough to respond to creative, undesirable, workarounds by the governed.

The goal is justice among the governed and the governors. Justice is notoriously difficult to define ex ante for all circumstances. The application of laws to promote justice must also be adaptable. That’s the proper function of judges, not merely to read but to interpret with the benefit of human understanding and shared cultural values.

[Rossami]

Sounds like an interesting book. I wonder how it compares to Three Felonies A Day.

[P50flightm40]

Silverglate focuses on everyday legal pitfalls, while Gorsuch emphasizes systemic reform.

Silverglate highlights how vague laws can trap ordinary citizens, whereas Gorsuch stresses the need for clear standards to ensure justice.

Silverglate advocates for reducing the number of federal offenses, while Gorsuch calls for a return to constitutional principles.

Silverglate brings a civil liberties lawyer's perspective, focusing on individual impacts, while Gorsuch offers a judicial viewpoint on broader legal reforms.

[B G]

Beat me to it on that question.

[TJJ2000]

Yet somehow the US Constitution can list enumerated powers in one section. Reminds me of the journalist who took the time to ask every single congressmen exactly how many 'Agencies' the Federal Government has and not a single politician knew.

[Uncle Jay]

There are too many politicians.
Just look at how many members of the House of Representatives there are today.
No wonder no significant legislation gets done.

[TJJ2000]

Maybe it was designed so too much “significant legislation” (Millions of Laws) didn’t “get done”.

[EscherEnigma]

"His compassion for people [...]"
This is the guy that ruled a trucker should have frozen to death for his employer.

[But SkyNet is a Private Company]

I’ll say what needs to be said - JD Vance is wrong about Gorsuch

[Rockstevo]

Maybe it's time to revisit the "ignorance of the law is no excuse" decision. Maybe it is an excuse until they drop below 1000 laws?

[TJJ2000]

I've always thought 'intent' should be a major factor in prosecutions.
As well as actually having a 'victim' beyond politics say-so.

[Roberta]

...

To illustrate "the human toll" of "too much law," the book tells the story of Florida fisherman John Yates, whose grueling legal odyssey began with the charge that he had discarded undersized red grouper.. That alleged act supposedly violated a law aimed at deterring the destruction of potentially incriminating financial records.

I don't have the book, so let me guess: The law requires the keeping of the rotting fish on the boat for 3 years in case of an audit. Are you at least allowed to freeze them?

[Medulla Oblongata]

Found via DuckDuckGo:

Commercial fisherman John Yates and his crew were fishing for red grouper in the Gulf of Mexico off the coast of Cortez, Fla., in 2007. His vessel was boarded by John Jones, a state Fish and Wildlife officer who was working on behalf of the National Oceanic and Atmospheric Administration.

As NPR's Nina Totenberg reported last November: "Jones, suspecting that the fishermen were keeping fish smaller than the 20-inch minimum, measured some of the catch and found 72 grouper that were undersized."

That's 72 fish out of a catch of more than 3,000, Yates wrote last year in Politico. He was issued a civil citation from the state.

But when Yates' vessel returned to port the next day, Jones and other officials examined the entire catch and found 69 — not 72 — undersized fish.

"Nearly three years later, the federal government charged me with the destruction of evidence — yes, fish — to impede a federal investigation," Yates wrote in Politico. "I was subsequently arrested at my home. I have been blacklisted by boat owners who fear federal investigations similar to mine. I am now unable to make a living doing what I love to do."

Yates was charged with violating the Sarbanes-Oxley Act, which was passed after, as Nina put it, "a scandal ... destroyed energy firm Enron and resulted in criminal convictions for accounting firm Arthur Andersen."

Prosecutors said he told his crew to throw the undersized fish overboard. He was convicted of destroying evidence to impede a federal investigation and sentenced to 30 days in jail. He appealed all the way to the Supreme Court, arguing the law applied only to documents and records, not fish. But, as Nina noted at the time:

"The federal government, however, argues that the law was clearly written and intended to be a broad anti-obstruction-of-justice law that would fill gaps in the criminal code that had long existed."

The Sarbanes-Oxley Act makes it a crime to destroy, alter or cover up "any record, document, or tangible object with the intent to ... impede or obstruct" the investigation of "any matter within federal jurisdiction."

[Medulla Oblongata]

It's not clear if there was a reason they would have dumped 3 fish but not all of them (if they dumped them at all). Or if someone at one end or the other just miscounted.

[The Angry Hippopotamus]

How did we get from Article I Section 1 Cause 1:

'All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.'

to

"estimates suggest that at least 300,000 federal agency regulations carry criminal sanctions."

Perhaps it's way past time to confine the government of the United States to the four corners of the Constitution of The United States of America

[Anastasia Beaverhausen]

Reason writers clearly don't understand what a book review is supposed to be and do. It isn't merely to repeat what the author wrote in the book, but to actually REVIEW the book - to critique what the author wrote, to offer opinions as to where the author is right or wrong, and to offer a recommendation regarding purchase.

[Medulla Oblongata]

“Did you really think we want those laws observed?” said Dr. Ferris. “We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against… We’re after power and we mean it… 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. Now that’s the system, Mr. Reardon, that’s the game, and once you understand it, you’ll be much easier to deal with.”

Who knew that like 1984, the left would use Atlas Shrugged as a guidebook rather than a warning. And of course, Idiocracy is fast becoming a prescient documentary.