Government has become so big and intrusive – Congress has passed so many laws, many unread, – the Justice Department so politicized – that there are few checks and balances left to restrain these petty tyrants.
Prosecutorial discretion poses an increasing threat to justice. The threat has, in fact, grown more severe to the point of becoming a due process issue. Given the vast web of federal statutes and regulations, every citizen, knowingly or not, is potentially at risk for prosecution.
There are now more than 4,000 federal crimes, an increase of one-third since 1980. Many of those crimes, spread out through some 27,000 pages of the U.S. Code, incorporate violations of federal regulations that are, in turn, spread throughout the tens of thousands of pages of the Code of Federal Regulations. As a result, even teams of legal researchers – let alone ordinary citizens – cannot reliably ascertain what federal law prohibits.
Former Attorney General (and later Supreme Court Justice) Robert Jackson once commented: “if the prosecutor is obliged to choose his cases, it follows he can choose his defendants. This method results in the most dangerous power of the prosecutor: that he will pick people he thinks he should get, rather than pick cases that need to be prosecuted.”
Prosecutors no longer need to wait for signs of a crime. Instead of finding Professor Plum dead in the conservatory and then launching an investigation, authorities can now start an investigation of Colonel Mustard as soon as someone suggests he is a shady character.
Overcriminalization has left us in a peculiar place. Though people suspected of a crime have extensive due process rights when dealing with the police and people actually charged with a crime have even more extensive due process rights in court, the actual decision of whether or not to charge a person with a crime is almost completely unrestrained. Prosecutors are immune from lawsuits over misconduct in their prosecutorial capacity.
Traditionally, citizens have been expected to know the law. Yet traditionally, regulatory crimes usually applied only to citizens in specialty occupations, who might be expected to be familiar with applicable regulatory law.
Ordinary citizens need no special knowledge to avoid committing rape, robbery, theft, etc. But now, with the explosion of regulatory law, every citizen is at risk of criminal prosecution for crimes that involve no actual harm or ill intent. Real knowledge of all criminal laws and regulations is impossible, especially when those regulations frequently depart from any intuitive sense of what “ought” to be legal or illegal.
If we care about due process – and we should – we should be deeply concerned about a system in which official discretion reigns almost unfettered where constraint matters most.
The first step in “fixing” overcriminalization is to stop the political aggrandizement that comes with demanding/applauding a new law to solve every ill that appears in the morning paper. We live under the crushing burden of redundant and ill-conceived laws and regulations, and yet the fact that prosecutors use them suddenly shocks us? The second step, nowhere to be found in the scholarly fixes, is to expect judges, who exist to play the role of neutral in the great war, to be, in fact, neutral in their exercise of discretionary authority.” Scott Greenfield
Professor Glenn Harlan Reynolds, University of TN Law School – Ham Sandwich Nation: Due Process when Everything Is a Crime