Green Room

Can due process exist in a system that criminalizes so much?

posted at 12:33 pm on January 21, 2013 by

That’s the question Glenn “Instapundit” Reynolds asks in an academic paper, available for download to the public. Glenn uses the recent example of non-prosecution for David Gregory to point out the arbitrary nature of federal prosecutions in a system where it seems everyone might be a criminal, if we just look closely enough:

Two recent events have brought more attention to this problem. One involves the decision not to charge NBC anchor David Gregory with weapons-­‐ law violations bearing a potential year-­long sentence for brandishing a 30-­round magazine (illegal in D.C.), despite the prosecutor’s statement that the on-air violation was clear; the other involves prosecutors’ rather enthusiastic efforts to prosecute Reddit founder Aaron Swartz for downloading academic journal articles from a closed database, prosecutorial efforts so enthusiastic that Swartz committed suicide in the face of a potential 50-­‐year sentence.4

Both cases have aroused criticism, and in Swartz’s case even legislation designed to ensure that violating websites’ terms cannot be prosecuted as a crime.5 But the problem is much broader. Given the vast web of legislation and regulation that exists today, virtually any American is at risk of prosecution should a prosecutor decide that they are, in Jackson’s words, a person “he should get.”

Unfortunately, the Swartz case is more typical, and more damaging. The proliferation of laws has placed broad swaths of the public in jeopardy of breaking them without even knowing they exist. Glenn’s article is brief and interesting, and offers some solutions to the problem of perpetually expanding statutes and the abuse it brings.  For instance:

Traditionally, of course, the grand jury was seen as the major bar to prosecutorial overreaching. The effectiveness of this approach may be seen in the longstanding aphorism that a good prosecutor can persuade a grand jury to indict a ham sandwich. Grand jury reforms – where grand juries still exist – might encourage grand jurors to exercise more skepticism, and educate them more. But grand juries are not constitutionally guaranteed at the state level, and reforming them at the federal level is iffy.

Overall, the problem stems from a dynamic in which those charged with crimes have a lot at risk, while those doing the charging have very little skin in the game. One source of imbalance is prosecutorial immunity. The absolute immunity of prosecutors – like the absolute immunity of judges – is a judicial invention, a species of judicial activism that gets less attention than many other less egregious examples. Although such immunity no doubt prevents significant mischief, it also enables significant mischief by eliminating one major avenue of accountability. Even a shift to qualified, good-­‐faith immunity for prosecutors would change the calculus significantly.

Another remedy might be a “loser pays” rule for criminal defense costs. After all, when a person is charged with a crime, the defense – for which non-­‐ indigent defendants bear the cost – is an integral part of the criminal justice process.10 For guilty defendants, one might view this cost as part of the punishment. But for those found not guilty, it looks more like a taking: Spend this money in the public interest, to support a public endeavor, or go to jail. To further discipline the process, we might pro-­‐rate things: Charge a defendant with 20 offenses, but convict on only one, and the prosecution must bear 95% of the defendant’s legal fees. This would certainly discourage overcharging.

Be sure to read it all.

Recently in the Green Room:

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

I’ve pointed this out to many lefties, and they just scoff. Unless its minorities on death row, just not that into it.

SuperBunny on January 21, 2013 at 12:47 PM

This is a good idea way too late.

I was over at my friends talking about the book “Three Felonies a Day”, which shows that, on average Americans commit three Felonies a Day. For example, when you last changed the Air Filter or Oil filter in your car, did you exchange it for the EXACT filter recommended by the manufacturer, or did you get the cheapest or even the best you could (Fram or K&N)? WHAM! That is Tampering with a Pollution Control Device, 5 years. Do you have a clean, empty bag in your car for the disposal of trash? WHAM! And so on.

Let’s suppose you simply take the fifth on everything, including your name. Suddenly you are “in Contempt” and you can be thrown in jail on no charges Whatsoever till the Grand Jury term is expired, say 18 months. When you get out, your Job, your Wife, your licenses and your savings are gone to lawyers.

This leaves out the fact that if you are designated a “Terrorist” you can be tortured and or Killed without Due Process. Fact.

Bulletchaser on January 21, 2013 at 12:58 PM

Bulletchaser on January 21, 2013 at 12:58 PM

Fits my view of things.

astonerii on January 21, 2013 at 1:02 PM

Everyone is a criminal in a country where everything is illegal. Unfortunately in this country pretty much everything is illegal at one level of government or another.

Dr. Frank Enstine on January 21, 2013 at 1:08 PM

One source of imbalance is prosecutorial immunity. The absolute immunity of prosecutors – like the absolute immunity of judges – is a judicial invention, a species of judicial activism that gets less attention than many other less egregious examples.

This is one of the biggest threats to our criminal justice system.

ButterflyDragon on January 21, 2013 at 1:11 PM

Maybe off topic, I was wondering…if we’re all Created Equal like our Declaration of Independence says, then how is it Constitutional that congress can exempt themselves from ObamaCare?

jawkneemusic on January 21, 2013 at 1:12 PM

One involves the decision not to charge NBC anchor David Gregory with weapons-­‐ law violations bearing a potential year-­long sentence for brandishing a 30-­round magazine

I still have a big problem with this. Nobody can convince me that if it were somebody like Beck, Rush or any other anti-left person that they would not have been arrested for this. What it shows is how some animals really are more equal than others. As I get older and see what is gong on the more concern I have for a safe future for this country.

Dr. Frank Enstine on January 21, 2013 at 1:14 PM

“Due process and judicial process are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.” -Eric F&F Holder

So, if three of Eric’s underlings have a meeting at Sparks Steakhouse and decide that you should be whacked, that’s due process.

Akzed on January 21, 2013 at 1:21 PM

I had not heard about Aaron Swartz. That was good to know (and an absolute shame and outrage in its own right).

Jeddite on January 21, 2013 at 1:36 PM

“There’s no way to rule innocent men. The only power any government has is 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 kinds of laws that can neither be observed nor enforced nor objectively interpreted – and you create a nation of lawbreakers – and then you cash in on guilt. Now that’s the system, Mr. Rearden, that’s the game, and once you understand it, you’ll be much easier to deal with.”
-Floyd Ferris

From Ayn Rand’s “Atlas Shrugged”

So many situations where that quote applies, I feel like I’m over using it.

iurockhead on January 21, 2013 at 1:41 PM

If I ever ran for Governor, I’d run on the promise to veto any bill introducing a new law that wasn’t accompanied by a bill rescinding at least two other laws.

flipflop on January 21, 2013 at 1:55 PM

The feds are by far the biggest offenders here.

1) Criminalizing even minor and unknowing infractions of administrative rules.

2) “Wire fraud”, where basically everything we do now transmits across the internet, and the only requirement is some sort of deceitful act (doesn’t need to be itself illegal, and doesn’t need to involve money).

3) “False statements” to a federal agent is a crime. High profile cases prove that if the feds want to pin that on you, they can at least make a trial of it. You’re better off never talking to a fed, even if you have nothing wrong.

Sadly, (3) is the advice I had to give to a family member who could have made a material witness to some actual wrongdoing. But the risks of having a “false statement” pinned on him if suddenly fell into disfavor with the feds was too great. It’s a lot safer just to stay silent.

Nessuno on January 21, 2013 at 2:06 PM

Nearly 50 years ago I said, as a joke, “That which is not prohibited is compulsory”.
Not funny anymore.

countrybumpkin on January 21, 2013 at 2:08 PM

Everything is illegal for the simple reason that some industry/union/professional association etc. pays a lobbying firm to write the legislation and obtain a legislator to introduce and back it.

M240H on January 21, 2013 at 2:34 PM

Bulletchaser on January 21, 2013 at 12:58 PM

Not only are there so many (ridiculous) laws passed that we can’t keep up with them, the book goes over many examples of people/companies prosecuted for violating laws they thought they were complying with.

NbyNW on January 21, 2013 at 3:43 PM

It is nice to see some people waking up to just how bad this has become.

While there is little you can do to try and correct our corrupt legal system, there is one thing you can do; jury nullification. Next time you are on jury duty, unless it is a violent crime, actual theft or something, just refuse to convict.

woodNfish on January 21, 2013 at 4:04 PM

When I sat on a trial as a juror it was for a man being charged with posession of meth, posession of a firearm as a felon and assault for his gf waving the gun at someone she hated.

As we found out during the case, he had no idea she had the gun in her purse till she pulled it out, she testified as much and the reason he was being charged with posession was because she threw it on the ground when the cop came up, therefore he was now in posession.

We found him not guilty of all but the drug charges and the Prosecutor and Defense came back to see if we had questions after and the Prosecutor admitted that we got it right…so why the F were they charging him with those crimes?!?

Between that and one of the jurors saying she felt he was guilty because he committed a crime before made me really feel for those people who get horrible representation and a bad jury.

nextgen_repub on January 21, 2013 at 6:10 PM

The principle of “Ignorantia juris non excusat” (ignorance of the law is no excuse) has to be nullified.

There is no person on earth who can possibly know every law now on the books in America, it is simply beyond the capacity of a human being to do so, or even a fraction of it.

Rebar on January 21, 2013 at 7:56 PM

In 1992 Ross Perot said we had a lot of good people in the system, but the system was broken and we just needed to to fix it.

He was wrong.

The system was the same we’ve had for 200 years. The people in the system were reprobates and kleptomaniacs and they corrupted it. Any system can be corrupted. I like the changes Reynolds proposes, but that system can be corrupted, too.

The answer is the same. We need leaders of high moral character and ethics. The crop we have now is not.

InterestedObserver on January 22, 2013 at 11:00 AM