The Imperial Prosecutor: Too Much Power, Too Many Laws, Everything Is Criminal
Radley Balko writes at the Huff Po on The Power Of The Prosecutor. An excerpt:
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.
But you, citizen, are expected to know and comply with all of these laws. That isn't possible, of course. It would probably take you most of the year to understand them all, at which point you'd have the next year's batch of new laws to learn. You'd probably also need to hire a team of attorneys to help you translate the laws into terms you can understand. After the McCain-Feingold legislation passed in 2003, for example, both parties held weekly, three-hour classes just to educate members of Congress on how to comply with the bill they had just passed. This is a bill they wrote that applied to themselves, and they still had to bring in high-paid lawyers explain to them how not to break it.
Most of us don't have that option. And it's absurd that someone should have to hire an attorney or tax accountant merely to pay their taxes, run a business, run for office, or start a political organization without fear of getting hit with exorbitant fines, or going to jail.
Worse, while we citizens can go to prison for unwittingly breaking laws of which we weren't aware, prosecutors and law enforcement officers who wrongly arrest, charge, and try citizens based on a misunderstanding of the law generally face no sanction or repercussions. Under the doctrine of qualified immunity, a police officer who illegally arrests someone because he wasn't aware of the law can only be held liable if the law in question was "clearly established" at the time he violated it. Prosecutors are protected by absolute immunity, which basically shields them from liability no matter how egregious their mistakes.
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.
Related: Owen Kerr at Volokh on the Aaron Swartz case. (Via @WalterOlson.)
Possible solution? Require the federal government to ensure that the laws can be read and understood by the average person.
Specifically: require all laws that apply to individuals to be published in a single booklet, written in plain English (like the tax instructions). Maximum length: 250,000 words (a big novel). Whatever doesn't fit, isn't legally binding.
Regulations may clarify the law (what, precisely, is "trespassing"), but may not add to it, and must be published in the same way, with a similar length limit.
Do the same for businesses, and the same for "all other" laws and regulations.
What better way to reign in Congress?
a_random_guy at January 17, 2013 1:42 AM
Congress should be bound to comply with all laws, as written, without assistance.
They want a complex tax code? They're millionaires, let them do their own taxes by themselves. I'm fairly sure we'd have a flat tax soon.
Sunset them all after five years. Make them all be reviewed and re-authorized individually by Congress. Make Congress read them, aloud, word by word, into the Congressional Record - no delegation.
All laws and regulations enacted by Congress apply to every individual Congressman. No member of Congress may receive anything or be exempt from any law or regulation that applies to other citizens. No special retirement, medical care, private dining facilities, barbershop, gym, nothing not open to the public.
They are not our masters.
MarkD at January 17, 2013 5:34 AM
MarkD,
I agree with an automatic sunset.
But I would do it on all laws after seven years unless re-approved by a 2/3 majority of both houses.
Those laws already on the books sunset two years after the passage of this.
Jim P. at January 17, 2013 6:14 AM
Count me in with some form of automatic sunsetting.
Even the fiscal cliff, as stupid as it is, has Congress and the people talking about if/how to replace a broken law with a new one.
jerry at January 17, 2013 8:42 AM
I was thinking a 10yr sunset on all laws that aren't a Constitutional Amendment. But definitely some kind of sunset.
A great side effect would be that Congress would be forced to spend so much time just keeping current necessary laws on the books (murder, tax fraud, etc), pretty quickly they'd have almost no time to do anything else.
Kevin at January 17, 2013 12:29 PM
There's two things that I think would make a huge difference:
1. A rule that someone who is charged with a crime under state law cannot be charged in federal court for the same offense. That would eliminate a lot of the "piggybacking" charges that federal prosecutors throw in because they don't think that state laws are tough enough, or just to pad their numbers.
2. Establish the principle of due process in regulatory proceedings. Any person charged with anything by the federal government should have a right to a day in a real court of law, not one of these phony "administrative law judges" that are controlled by the enforcing agency. A rule passed by an agency is an extension of a law passed by Congress; it carries the same weight and penalties as a law, so the accused should have the same rights under the law.
Cousin Dave at January 17, 2013 2:02 PM
Cousin - about #1:
There is an apparent tendency for jurisdictions to ignore Federal gun law. This is one of the things I point out when the argument appears that "there are no laws prohibiting gun crime" - a position frequently taken by hoplophobes.
If there is a Federal statute, I don't see why it isn't called BEFORE we cite some local law.
Radwaste at January 19, 2013 4:33 AM
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