…has become a crime:
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.)
In a recent Columbia Law Review essay, I suggest some remedies to this problem: First, prosecutors should have “skin in the game” — if someone’s charged with 100 crimes but convicted of only one, the state should have to pay 99% of his legal fees. This would discourage overcharging. (So would judicial oversight, but we’ve seen little enough of that.) Second, plea-bargain offers should be disclosed at trial, so that judges and juries can understand just how serious the state really thinks the offense is. Empowering juries and grand juries (a standard joke is that any competent prosecutor can get a grand jury to indict a ham sandwich) would also provide more supervision. And finally, I think that prosecutors should be stripped of their absolute immunity to suit — an immunity created by judicial activism, not by statute — and should be subject to civil damages for misconduct such as withholding evidence.
It’s a travesty. They should take the whole federal criminal code and throw it out, and start over.
Well given how many people ran for office being tough on crime, i doubt anyone
who votes for this would survive a GOP primary.
They are reasonable suggestions but elections don’t often let anyone be reasonable.
Wouldn’t it be nice if there was another branch of government whose only task was to repeal laws?
Aside from the natural impulses which promote the growth of bureaucratic power, I suppose the current state of the justice system is due to the hangover America has from the violent crime wave of the late 20th Century. Nearsighted short-cuts in the administration of criminal justice were bound to happen in response to all that violence.
Today it seems the primary energy sustaining the police-state-complex is the failed war on drugs. There is at least some hope though, since the Democrats failed to launch an additional national war on guns to the existing war on drugs. And even the war on drugs is in crisis with the collapse of popular support for marijuana criminalization.