That's the title of a piece I co-wrote with my daughter Kate Markus for the Daily Business Review. It starts like this:
There’s been a lot of talk about overcriminalization in recent years. Prosecutors are going after folks for everything you can imagine. In one famous example, retired race car driver Bobby Unser was prosecuted by the feds for driving his snowmobile on protected federal land. Unser had gotten lost during a snowstorm and was seeking shelter. Closer to home, members of a religious outreach group were arrested and prosecuted for feeding the homeless in a Fort Lauderdale park because they violated a food sharing law.
Because our trial system has turned almost exclusively into a system of pleas (97% of cases resolve by way of plea agreement), one might think that all of these prosecutions must be justified. That could not be further from the truth. The system has made the risks of trial so daunting—with a defendant likely to receive a sentence many times longer if he has the audacity to declare his innocence and proceed to trial—that most defendants fall on the sword and plead guilty, even if they are innocent.
The list of federal crimes has become so lengthy that it is unknown how many there actually are. This is in stark contrast to the federal criminal code in 1790, which included just 30 crimes. By the 1980s, that number was more than 3,000. Although the Department of Justice (DOJ) has not catalogued all of the crimes on the books now, there are over 300,000 statutes and regulations that carry federal criminal penalties.
1 comment:
One person's trial tax is another person's guilty plea discount. It is all a matter of perspective, but the better view is that the low sentence offer that a defendant gets before trial is a discount from the just sentence s/he would receive after trial. We give that discount to encourage defendants to admit their guilt, so as to save resources and begin the process of rehabilitation. This is an imperfect view, for sure. But it is a far better viewpoint than the cry that a defendant that refuses to accept responsibility for their actions is treated unfairly when they receive a sentence according to the Guidelines. Are the Guidelines not promulgated by a judicial commission tasked with helping courts reach a just sentence? Should society be forced to choose between allocating substantially more resources for trials or just charging less offenders? (Be careful what you wish for, defense bar).
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