Ham Sandwich Nation: Due Process When Everything Is a Crime

&quot;It is also worth considering whether mere regulatory violations—malum prohibitum rather than malum in se—should bear criminal sanctions at all. Traditionally, of course, 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.&quot;<p>This is a particular peeve of mine. Throwing someone in prison should require demonstrable harm worthy of the state swinging its hammer. Fraud is already a crime, so is theft, so is deception in its various forms. Failure to fill out a form or making a mistake in light of a rule should not carry the risk of a criminal record.<p>By the way, &quot;The Illustrated Guide to Law&quot;[0] has an outstanding section on the concept of regulatory breaches as crimes and why they shouldn&#x27;t be the cause of someone being thrown into jail.<p>0 - <a href="http://lawcomic.net" rel="nofollow">http:&#x2F;&#x2F;lawcomic.net</a>

In some of my not-entirely-sober states of mind I have sometimes thought of ways to eliminate prosecutorial overreach. (It&#x27;s a problem outside US too.)<p>A very simple approach would be that for each count that the defense can strike off as irrelevant or spurious, they would also get to strike off <i>any</i> other charge of their choosing. That alone would make prosecutors extremely wary of bringing up random charges in hopes of seeing which they can make stick. They would need to have solid evidence for each charge or risk having the most serious ones nullified.<p>On the other hand, I&#x27;m not naive enough. The cure could well be worse than the poison it was meant to address.

It is kind of shocking to me that the state isn&#x27;t liable for defendants&#x27; legal fees in the face of an acquittal. If I sue someone in civil court on frivolous grounds, they can countersue me yet no parallel exists in the criminal realm. Perhaps more than just an acquittal is necessary and you&#x27;d have to show some sort of prosecutorial overreach to collect. But, in that case, the damages should include compensatory and punitive damages.

<i>If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.</i><p>Attributed to Cardinal Richelieu, or possibly one of his agents.<p>edit - I think if Richelieu could see today&#x27;s security apparatus he would be very pleased with how far we have managed to move forward his ideas.

Many interesting solutions are posited throughout the comments section. I&#x27;ve no doubt that many of them would help at least a bit.<p>But the most important change must come from within the hearts of the voters that control western governments: Voters <i>like</i> prosecutorial overreach, as they consider every person dragged into court &quot;guilty of something.&quot;<p>Until that attitude changes, meaningful change will be difficult.

&quot;There&#x27;s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren&#x27;t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What&#x27;s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted-and you create a nation of lawbreakers-and then you cash in on guilt.&quot; -Atlas Shrugged

There are a bunch of things which (IMO) are in this family of problems. Prosecutors discretion , everything is a crime is certainly one problem that seems to exist to a scary degree in every modern law system. Sodomy remained a crime long after it stopped being prosecuted. It had always been prosecuted selectively anyway.<p>A related issue of selective investigation and arrest by police. Perhaps more scary because of the Polices’ greater exposure to the public. This comes into play a lot with discrimination and political oppression.<p>Then we have judicial discrepency. That might be the trickiest one. Among its many effects, it allows plea bargaining to create a very big gap between a negotiated plea and the potential outcome of a court case. Take one year or risk five. Just confess and take the reduced sentence. A defining feature of show trials is forced confessions. Confess. Beg forgiveness and mercy. That is using incredible pressure to deny accused their day in court and a trial where both sides present their case.<p>Then after a sentence is passed, the actual length and severity of prison sentences is in practice determined by the prison system which has its own arbitrary and&#x2F;or discretionary powers.<p>Rule of law is hard, genuinely. Could courts even handle a system without plea bargains?

It&#x27;s only getting worse. Some DA offices are asking for DNA samples from minor offenses ( Misdemeanors ) for a decent plea or no time. When your only job is to win and put people away you&#x27;re going to do whatever you can to accomplish this. It&#x27;s the same as any company trying to dominate a particular industry or become the best. Our Justice system needs another change similar to the change from punishment to rehabilitation.

In my limited experience the notion that you can &quot;indict a ham sandwich&quot; is simply not true. I sat on a grand jury once for 2 weeks. Most cases brought to us were patently guilty and the ones that weren&#x27;t were met with extreme scepticism. We declined to indict at least a few defendants where the evidence was weak.

Due Process in US is a parody. California makes it even worse with stuff like recent law about drunken sex consent. Add astronomical prices and you get toxic environment.<p>I have plenty of job offers, but I would never move to California.

The US has an insanely outsize prison population. It didn&#x27;t get that way without people being arrested by a growing army of militarized police, and, in most cases, plea bargaining with an aggressive prosecutor.

I&#x27;m very sympathetic to this point of view, but the author starts inauspiciously when he asserts that a news anchor should have been prosecuted for using a high-capacity gun magazine as a visual aid in his newscast. Perhaps he&#x27;s had his mind made up about prosecutorial discretion too long to see this episode as an example of discretion done right.

This goes hand in hand with the &quot;3 felonies a day&quot; Americans are committing:<p><a href="http://online.wsj.com/news/articles/SB10001424052748704471504574438900830760842" rel="nofollow">http:&#x2F;&#x2F;online.wsj.com&#x2F;news&#x2F;articles&#x2F;SB1000142405274870447150...</a>

From the essay: &quot;Despite the problems described above, most of us remain safe. Prosecutors have limited resource [...]&quot;<p>This reminds me of the issue with warrants and GPS tracking devices on cars. Police have argued that attaching a GPS tracker is no different than assigning a patrol car (or unmarked car) to tail a person. But there&#x27;s a huge difference. Up until recently, our expectation was that assigning a tail was an investment of rather limited resources, thus giving us some assurance that police would be precluded from tailing anyone but bona fide suspects. With the proliferation of GPS devices -- the cost of which will most certainly continue to come down -- the number of people police can track approaches everybody. That&#x27;s living in a very different world.<p>Wait until prosecutors have the computing power to track people&#x27;s activities and flag &quot;crimes.&quot; The &quot;Mother Teresa&quot; parlor game will be made automatic and expand to include everyone. That will be a very different world, too.

The end result if nothing changes is likely that everything we do is a crime; the only question is whether there is room to incarcerate.

<i>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 could easily fall prey to the temptation of “picking the man, and then searching the law books...to pin some offense on him.” In short, prosecutors’ discretion to charge—or not to charge—individuals with crimes is a tremendous power, amplified by the large number of laws on the books.</i><p>The messy state of US law, with many preposterous and outdated laws on the books, encourages this kind of discretionary enforcement. Even police officers can often &quot;pick the man, then figure out the crime.&quot;

InclinedPlane wrote a fantastic post on this exact topic a while back: <a href="https://news.ycombinator.com/item?id=4753117" rel="nofollow">https:&#x2F;&#x2F;news.ycombinator.com&#x2F;item?id=4753117</a>

There was an excellent New Yorker article about how we got here, due process vs principles:<p><a href="http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120130crat_atlarge_gopnik?currentPage=all" rel="nofollow">http:&#x2F;&#x2F;www.newyorker.com&#x2F;arts&#x2F;critics&#x2F;atlarge&#x2F;2012&#x2F;01&#x2F;30&#x2F;120...</a>

How soon before the author of this is indicted?