Our Criminal Justice System? It’s a Crime

One of the hallmarks of a totalitarian state is that there are so many laws and regulations that no one can possibly know what they are, let alone obey them. Thus everyone is a criminal, and only the despot’s discretion separates the solid citizen from the criminal. Unfortunately, the United States is rapidly approaching–if it has not already reached–this dystopian status.

So Glenn Reynolds’s great column in USA Today should be a starting point for lots of conversations:

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Here’s how things all-too-often work today: Law enforcement decides that a person is suspicious (or, possibly, just a political enemy). Upon investigation into every aspect of his/her life, they find possible violations of the law, often involving obscure, technical statutes that no one really knows. They then file a “kitchen-sink” indictment involving dozens, or even hundreds of charges, which the grand jury rubber stamps. The accused then must choose between a plea bargain, or the risk of a trial in which a jury might convict on one or two felony counts simply on a “where there’s smoke there must be fire” theory even if the evidence seems less than compelling.

This is why, in our current system, the vast majority of cases never go to trial, but end in plea bargains. And if being charged with a crime ultimately leads to a plea bargain, then it follows that the real action in the criminal justice system doesn’t happen at trial, as it does in most legal TV shows, but way before, at the time when prosecutors decide to bring charges. Because usually, once charges are brought, the defendant will wind up doing time for something. …

The problem with that attitude is that, with today’s broad and vague criminal statutes at both the state and federal level, everyone is guilty of some sort of crime, a point that Harvey Silverglate underscores with the title of his recent book, Three Felonies A Day: How The Feds Target The Innocent, that being the number of felonies that the average American, usually unknowingly, commits.

Such crimes can be manufactured from violations of obscure federal regulations that can turn pocketing a feather or taking home a rusted bit of metal from a wilderness area into a crime. In other cases, issues almost always dealt with in civil court, disagreements over taxes for instance, can be turned into a criminal case.

The combination of vague and pervasive criminal laws — the federal government literally doesn’t know how many federal criminal laws there are — and prosecutorial discretion, plus easy overcharging and coercive plea-bargaining, means that where criminal law is concerned we don’t really have a judicial system as most people imagine it. Instead, we have a criminal justice bureaucracy that assesses guilt and imposes penalties with only modest supervision from the judiciary, and with very little actual accountability. (When a South Carolina judge suggested earlier this year that prosecutors should follow the law, prosecutors revolted.)

Glenn offers several suggestions for how this situation might be remedied, which, again, are a starting point for discussion. But the real bottom line is that we need much, much less government.

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