Criminal Defense Booms When Everything’s a Crime

Criminal Defense – A System of Perpetuation

Criminal defense is a lucrative business. Lawyers spend years in a prosecutor or public defender’s office working long hours for low pay (and huge case-loads) just to get the experience in the trenches of criminal trials to finally switch to private practice. That’s where the real money is.

Many people realize that the American system of criminal justice is badly broken, and the criminal defense industry along with it. Ever wonder why defense attorneys don’t

Criminal Defense boom

“I can get you a plea for only 3 years in prison!”spend big bucks for lobbyists to change the laws that ensnare so many of their clients? Because that would mean fewer paying clients.

Did you know that Correctional Officer’s unions pay top dollar for lobbyists to get harsh punishment laws passed like California’s now-infamous “Three Strikes” law. Laws like this mean more jobs and more union dues.

Criminal defense is lucrative, so less criminal defendants means less money. On the other side of sentencing, less inmates means few correctional officer jobs.  The system is designed to have a continual flow of criminal defendants and inmates to feed it.

Is Everything a Crime Now?

As sarcastic as the titles of this section may seem, America is really becoming a society that is ciminalizing everything. There was a book published a few years ago titled, “Three Felonies a Day” by Harvey Silverglate, and recently we’ve been following @CrimADay on Twitter.

We’ve all seen the online galleries detailing whacky laws in different states. But what about real laws that carry real prison time, and are enforced? Here are a few:

  • 16 U.S.C. §§45e, 60 & 62 make it a federal crime to carry around a dead bird in Yosemite National Park.
  • 40 U.S.C. §§5014(d), 5109(b) & 2 U.S.C. §1963 make it a federal crime to use the US Capitol Grounds as a playground and injure the grass.
  • 18 U.S.C. §1701 makes it a federal crime to slow down a mailman.

In an article entitled The Crimes of the Century, Matt Kaiser details a recent case that shows that these aren’t just whacky laws that don’t get enforced.

As an example, let us consider a recent case from the Western District of Pennsylvania.

According to a recent press release from that office, a woman was indicted for theft of United States Mail. (Because it seems awfully mean to make her more Google-able, I’m not going to use her name here.)

Apparently, she looted a greeting card that was being sent to someone in Cranberry Township.

The article goes on to describe the prosecution of this crime, that resulted in the theft of two crisp $20 bills. Maximum penalty? 5 years and up to a $250k fine. Over $40. How much has the government already spent prosecuting this case? How much has she paid her attorney for her criminal defense? Who knows…

The Bigger Picture

When everything can be made criminal, two things happen. First, prosecutors can prosecute anybody and begin to do so selectively. This means that prosecutors could target political enemies, and with absolute power comes absolute corruption (eventually). Another effect from the fallout of this is the booming criminal defense industry, feeding lawyers to strive for more clients. That leads to the second point.

Second, the class system evolves from this. Lawyers and workers inside the criminal justice system, and civilians. Have you ever noticed how many politicians are also lawyers? Those that benefit from the laws are making them!


The Problem(s) With American Criminal Justice

Tyranny and the Prosecutor

Regular readers know that it is our belief that the American criminal Justice system is a bloated, over-powered mess. One author on the subject believes that there are so many laws that the average American commits three felonies each day without even knowing it. There are so many laws and regulations (with criminal penalties), that no normal person could learn them all in order to comply.

Prosecutors in both the state and federal systems wield the power of these laws. A system built like this can lead to criminal prosecutions that are possible because a motivated DA or US Attorney can find some law that has been broken to get their conviction. Some zealous prosecutions have ended with the suicide of a defendant.

To be fair, though, many prosecutors are good men and women that honestly want to promote justice and order. In my last post, I discussed a prosecutor who I believe crossed way over the line.

The power of the Prosecutor

In this lengthy and powerful article, written by Radley Balko over at the Huffington Post, the power of the prosecutor in the American system of criminal justice is explored in detail. Below are some great passages of this article, but the full piece deserves a full read:

We have too many laws.
There have been a number of projects that attempted to count the total number of federal criminal laws. They usually give up. The federal criminal code is just too complex, too convoluted, and too weighted down with duplications, overlapping laws, and other complications to come to a definite number. But by most estimates, there are at least 4,000 separate criminal laws at the federal level, with another 10,000 to 300,000 regulations that can be enforced criminally. Just this year 400 new federal laws took effect, as did 29,000 new state laws. The civil libertarian and defense attorney Harvey Silverglate has argued that most Americans now unknowingly now commit about three felonies per day.

We need to move away from the idea that every act we find immoral, repugnant, or unsavory needs to be criminalized. Every new criminal law gives prosecutors more power. Once we have so many laws that it’s likely we’re all breaking at least one of them, the prosecutor’s job is no longer about enforcing the laws, but about choosing which laws to enforce. It’s then a short slide to the next step: Choosing what people need to be made into criminals, then simply picking the laws necessary to make that happen.

Prosecutors have perverse incentives.

At the state level, prosecutors are reelected, move on to higher office, or win prestigious jobs at high-powered law firms for racking up large numbers of convictions — and for getting high-profile convictions. They’re rarely publicly praised or rewarded for declining to prosecute someone in the interest of justice. I’m sure it happens. But it isn’t the sort of thing even a well-intentioned prosecutor is going to boast about in a press release.

And in conclusion…

Too often, criticism of prosecutorial excesses isn’t framed as this should never happen, but why isn’t this happening to the people I don’t like? Until that changes — until partisans are willing to condemn abuses even by their own, or committed against their political opponents or people they personally find unsavory — the problem is only going to get worse.

I’d suggest all of these factors (and probably a few I haven’t thought of) have increasingly made us a nation ruled not by laws, but by politics (and by aspiring politicians). And once criminality is influenced primarily by politics, we’re all just potential criminals.

Rarely do I see a piece like this which delves so deep into the problems endemic to the system of American criminal justice. I applaud Mr. Balko for this piece and encourage readers to take a longer look.