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 at the Huffington Post (now writing for the Washington 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.