Search results for "overcriminalization"

The War on Drugs, Overcriminalization, and the Rise of Militarized Police Raids

Deroy Murdock has an interesting National Review column describing the rise of abusive, military-style police raids:

Overarmed federal officials increasingly employ military tactics as a first resort in routine law enforcement. From food-safety cases to mundane financial matters, battle-ready public employees are turning America into the United States of SWAT.

FBI agents and U.S. marshals understandably are well fortified, given their frequent run-ins with ruthless bad guys. However … armed officers, if not Special Weapons and Tactics crews, populate these federal agencies: the National Park Service; the Postal Inspection Service; the Departments of Health and Human Services, Agriculture, Labor, and Veterans Affairs; the Bureaus of Land Management and Indian Affairs; the Environmental Protection Agency; and the Fish and Wildlife Service. Even Small Business Administration and Railroad Retirement Board staffers pack heat!

These “ninja bureaucrats,” as [Quin] Hillyer calls them, run rampant. They, and often their local-government counterparts, deploy weapons against harmless, frequently innocent, Americans who typically are accused of non-violent civil or administrative violations.

Murdock describes many disturbing examples of such raids, such as this one:

On July 13, 2010, a dozen St. Paul, Minn.–area policemen and a federal Drug Enforcement Agency officer assaulted Roberto Franco’s home. Clad in Army fatigues, they rousted all nine people there, including three children. “Each plaintiff was forced to the floor at gun and rifle point and handcuffed behind their backs,” states Franco’s $30 million federal lawsuit against these authorities. “Defendants shot and killed the family dog and forced the handcuffed children to sit next to the carcass of their dead and bloody pet for more than an hour while defendants continued to search the plaintiffs’ home.”

According to the complaint, one young girl who “was handcuffed and prevented by officer from obtaining and taking her medication thus induced a diabetic episode as a

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Panel on Overcriminalization at the Heritage Foundation

Tomorrow, from noon to 1pm, I’ll be speaking on a panel at the Heritage Foundation on the problem of overcriminalization: You can watch online from here. The event will be focused around a new Heritage book, One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty, edited by Paul Rosenzwieg and Brian Walsh, both of whom will be on the panel. [...]

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Radley Balko’s Rise of the Warrior Cop

Radley Balko’s Rise of the Warrior Cop describes the increasing militarization of America’s police forces over the last several decades, and the immense harm it inflicts. It is the best new book on a law-related topic I have read so far this year.

I. The Growth of Militarized Policing.

Balko describes the growing use of military-style units, tactics, and equipment by law enforcement agencies around the country, including highly aggressive raids, the use of armored vehicles, and the deployment of overwhelming force of a kind traditionally reserved for military operations. The sheer scale of this militarization is staggering. For example, he notes that the number of SWAT team deployments has risen from a few hundred per year in the 1970s to over 50,000 in 2005. A wide range of state and federal law enforcement agencies now have military-style units, ranging from small-town rural police departments to such unlikely federal agencies as the National Park Service, the Postal Inspection Service, the Department of Agriculture, and the Fish and Wildlife Service

Most of the raids launched by these units target suspected low-level drug dealers, not terrorists, kidnappers, or violent criminals of any kind. The everyday use of such massive force predictably results in the death and injury of numerous innocent people. Balko documents numerous heartrending cases such as this one:

Sal Culosi is dead because he bet on a football game — but it wasn’t a bookie or a loan shark who killed him. His local government killed him, ostensibly to protect him from his gambling habit.

Several months earlier at a local bar, Fairfax County, Virginia, detective David Baucum overheard the thirty-eight-year-old optometrist and some friends wagering on a college football game…. After overhearing the men wagering, Baucum befriended Culosi as a cover to begin investigating him. During the

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George Will on Reducing Mandatory Minimum Sentences

George Will recently published an interesting column on a bill that would give judges greater discretion to reduce mandatory minimum sentences for federal crimes, co-sponsored by Democratic Senator Patrick Leahy and Republican Rand Paul:

Seven-term Democrat Pat Leahy’s 38 Senate years have made him Judiciary Committee chairman. Republican Rand Paul is in his third Senate year. They hope to reduce the cruelty, irrationality and cost of the current regime of mandatory minimum sentences for federal crimes.

Such crimes are multiplying at a rate of more than 500 a decade…..

Approximately 80,000 people are sentenced in federal courts each year. There are an estimated 4,500 federal criminal statutes and tens of thousands of regulations backed by criminal penalties, including incarceration. There can be felony penalties for violating arcane regulations that do not give clear notice of behavior that is prescribed or proscribed….

The Leahy-Paul measure would expand to all federal crimes the discretion federal judges have in many drug cases to impose sentences less than the mandatory minimums. This would, as Leahy says, allow judges — most of whom oppose mandatory minimums — to judge

Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.

Unlike many other critics of overcriminalization, I don’t object to mandatory minimums as such. I think there is a good case for ensuring uniformity of sentencing across different judges. But there is also a strong case for lowering the very high minimums that currently exist for many relatively minor federal crimes. An even better way to rein in federal criminal law would be to abolish much of it completely. [...]

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Privatized Lawmaking

You might want to check out a new article by Dru Stevenson at South Texas Law called Costs of Codification. Dru writes the Privatization Blog — don’t confuse it with the Reason Foundation’s Privatization Blog; I think either Dru or Reason should choose a catchier blog name. Here’s the abstract to Dru’s article, from SSRN (paragraph breaks added):

Between the Civil War and World War II, every state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs for courts and citizens, as statutes proliferate.

This Article takes a first look at this problem. On the legislative side, codification makes it easier for special interest groups to obtain their desired legislation. It facilitates Coasean bargaining between legislators, and encourages legislative borrowing, which diminishes the “laboratories of democracy” phenomenon. For the courts, codification changes how judges interpret statutes, prompting them to focus more on the meaning of individual words than on the overall policy goals of enactment, and to rely more on external sources, such as legislative history. For both legislators and courts, codification functions as a Hartian rule of recognition, signaling legality for enacted rules. For the citizenry, the reduced legislative costs mean increased legislative output, yielding rapid proliferation of statutes and unmanageable legal information costs. More disturbingly, codification also fosters overcriminalization.

While it may not be appropriate

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Perils of Prosecutorial Discretion in a World Where Everyone is a Criminal

University of Tennessee lawprof Glenn Reynolds (AkA “Instapundit”) has an interesting short paper on the dangers of prosecutorial discretion in a world where the scope of criminal law has gotten so vast that almost anyone can be convicted of a crime if the prosecutor goes after them aggressively enough:

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…..“ 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 huge number of laws on the books….

As Tim Wu recounted in 2007, a popular game in the U.S. Attorney’s office in the Southern District of New York was
to name a famous person – Mother Teresa, or John Lennon -­ and decide how they could be prosecuted….:

The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: “prison time….”

The result of overcriminalization is that prosecutors no longer need to wait for obvious signs of a crime. Instead of finding Professor Plum dead in the conservatory and launching an investigation, authorities can instead start an investigation of Colonel Mustard as soon as someone has suggested he is a shady character. And since, as Wu’s game illustrates, everyone is a criminal if prosecutors look hard enough, they’re guaranteed to find something eventually.

Glenn goes on to note that, once prosecutors do go after a defendant, they can often force him to plead guilty even if he is innocent of [...]

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Glenn Reynolds: “Ham Sandwich Nation: Due Process When Everything is a Crime”

Glenn Reynolds has a terrific, and very short, paper on SSRN on Ham Sandwich Nation: Due Process When Everything is a Crime, which I highly recommend.  (Conor Friedersdorf blogs about it here.)   Here is the key passage that summarizes the problem:

Overcriminalization has thus left us in a peculiar place: Though people suspected of a crime have extensive due process rights in dealing with the police, and people charged with a crime have even more extensive due process rights in court, the actual decision whether or not to charge a person with a crime is almost completely unconstrained. Yet, because of overcharging and plea bargains, that decision is probably the single most important event in the chain of criminal procedure.

He then offers a number of tentative suggestions on how to address this problem, which Friedersdorf summarizes as follows:

  • Rather than granting prosecutors absolute immunity against lawsuits, shift to a “qualified, good-faith immunity for prosecutors” — in other words, make them personally liable in instance when they aren’t carrying out their duties in good faith.
  • If a personal is charged with a crime and acquitted, make the prosecution pay their legal bill. Or if there are multiple crimes being adjudicated, “we might pro-rate things: Charge a defendant with 20 offenses, but convict on only one, and the prosecution must bear 95% of the defendant’s legal fees. This would certainly discourage overcharging.”
  •  Ban plea bargains all together, so that every criminal charge filed would have to be backed up in open court.
  • Alternatively, “we might require that the prosecution’s plea offers be presented to a jury or judge before sentencing. Jurors might then wonder why they are being asked to sentence a defendant to 20 years without parole when the prosecution was willing to settle for 5. 15 years
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A Whale of a Federal Case

In today’s Washington Post, George Will describes what I can only call a real whale of an abusive federal criminal prosecution:

The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon. Nevertheless, our unhinged government, with an obsession like that of Melville’s Ahab, has crippled Nancy Black’s scientific career, cost her more than $100,000 in legal fees — so far — and might sentence her to 20 years in prison. This Kafkaesque burlesque of law enforcement began when someone whistled.

Black, 50, a marine biologist who also captains a whale-watching ship, was with some watchers in Monterey Bay in 2005 when a member of her crew whistled at the humpback that had approached her boat, hoping to entice the whale to linger. Back on land, another of her employees called the National Oceanic and Atmospheric Administration (NOAA) to ask if the whistling constituted “harassment” of a marine mammal, which is an “environmental crime.” NOAA requested a video of the episode, which Black sent after editing it slightly to highlight the whistling. NOAA found no harassment — but got her indicted for editing the tape, calling this a “material false statement” to federal investigators, which is a felony under the 1863 False Claims Act, intended to punish suppliers defrauding the government during the Civil War.

A year after this bizarre charge — that she lied about the interaction with the humpback that produced no charges — more than a dozen federal agents, led by one from NOAA, raided her home. They removed her scientific photos, business files and computers. Call this a fishing expedition.

She has also been charged with the crime of feeding killer whales when she and two aides were in a dinghy observing

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Protecting Investors or Prosecuting Innocents? The Dangers of Vagueness in Financial Fraud Laws

Third installment in a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.

“As a result of a burgeoning number of fraud investigations and prosecutions, I have become convinced that a concerted interagency effort is needed. We want to bring this additional firepower to bear on behalf of investors who might otherwise lose their confidence in the integrity of these markets.”

The Financial Fraud Enforcement Task Force, an interagency effort to investigate and prosecute those responsible for the current economic crisis, was established via executive order on November 17. But the above announcement was made twenty years prior. On January 31, 1989, then-Attorney General Dick Thornburgh touted the creation of a coordinated task force to bring to heel those responsible for the Wall Street scandals du jour.

Indeed, the present response to Wall Street failures seems straight out of a time-tested Washington playbook: Ratchet up enforcement, throw the miscreants in prison, and—voila—the public’s confidence in their markets and in their government is restored.

Arrest rates for “white collar” fraud have surged in the wake of recent well-publicized financial scandals, according to data generated (PDF) from the FBI’s Uniform Crime Reports. Over a two-year period after the savings-and-loan scandal and the creation of the task force described above (1990-1992), the number of fraud arrests increased 53%; over the same period following the dot-com bust (2000-2002), arrests jumped 26%. Now, with regulatory agencies expanding their probes of alleged insider-trading violations and the Justice Department promising more convictions, a raft of indictments appears inevitable. But do these enforcement efforts reflect true criminal violations? Putting aside the long-term efficacy of such periodic orgies of prosecution, there remains the nagging question of whether the defendants are guilty of any crime.

One’s [...]

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Honest Services Fraud: Your Third Felony Today?

Last week, the Supreme Court heard two cases challenging the scope of so-called “honest services” fraud, a 28-word provision tacked onto the generic federal mail-and-wire fraud statute that makes it illegal to “deprive another of the intangible right of honest services.”

If you’re asking what this statute means, you’re in august company: Justice Antonin Scalia asked the very same question during oral argument in Black v. U.S. (see pg. 45 of the transcript [PDF]). All told, eight of the nine justices expressed skepticism about the “honest services” law, focusing on the vagueness that prosecutors have exploited but defendants and civil libertarians have loathed.

Most pointedly, perhaps, was Justice Stephen Breyer’s observation that almost any professional could inadvertently violate this statute. “[T]here are 150 million workers in the United States. I think possibly 140 [million] of them would flunk your test,” he told Deputy Solicitor General Michael R. Dreeben, who was attempting to posit arguable limiting principles.

Breyer’s observation goes to the heart of the phenomenon about which I’ve written in my book, Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009). Because of the vague terminology increasingly used in the ever-expanding federal criminal code, combined with the erosion of intent as a requirement for conduct to be considered prosecutable, the average citizen can easily commit several felonies in any given day. (Interviewers have jostled me for what they deemed my wild overstatement, while I’ve tried to assure them that their own daily conduct probably produces three arguable felonies. Now I have one justice—and perhaps several more—on my side.)

“Honest services” fraud is an instructive example of this trend, but the federal law books are cluttered with countless others. Creative interpretations of the Computer Fraud and Abuse Act, obstruction of justice statutes, and controversial [...]

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Conservatives Discover Criminal Defendants

The NYT reports on increasing involvement by conservative organizations and business groups on behalf of criminal defendants.  While libertarians have long complained about “overcriminalization” and excessive federalization of criminal law, such concerns have gained increasing currency in more traditional conservative circles.  This is a good thing. [UPDATE: But not according to Media Matters.]

QUICK ADDENDUM: Of course some conservatives have long been concerned about “overcriminalization.”  National Review‘s Frank Meyer, for instance, was a fierce critic of Frank v. Maryland and his brand of fusionist conservatism was suspicious of all government power.  Yet many so-called “law and order” conservatives were less sympathetic to such concerns, and these conservatives began to have significant influence on the Republican Party beginning with the Nixon Administration and continuing thereafter.  Some of the excesses of environmental enforcement conservatives complain of today were actually pioneered by law-and-order types in the Reagan Administration.  So I think it is fair to suggest that many conservatives are late to this party. [...]

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If You’re Reading This, You’re Probably a Federal Criminal:

Radley Balko has an interesting post discussing the ever-expanding reach of federal criminal law. As he points out, the problem is not just that federal criminal law has expanded to cover many areas that are better left to state or local governments. It is that the scope of federal criminal law is so broad that the feds could probably find a crime to pin on almost any American adult.

Judge Alex Kozinski and Misha Tseytlin have an excellent essay entitled “You’re (Probably) a Federal Criminal.” As they put it, “most Americans are criminals, and don’t know it, or suspect that they are but believe they’ll never get prosecuted.” You are a federal criminal if you have done any of the following:

1. Used any of the hundreds of substances banned by federal law, including smoking small amounts of marijuana and the like when you were in college. The last three presidents of the United States are all federal criminals under the drug laws, as are probably the majority of people who went to college in the last 40 years. Kozinski and Tseytlin cite statistics suggesting that nearly half of Americans have taken banned drugs at some point in their lives. The next presidential state of the union address should perhaps begin with “My fellow federal criminals,” instead of the traditional “My fellow Americans.” It would be a great teaching moment!

2. Underpaid federal taxes (often even inadvertently). As even sophisticated players like certain Obama Administration officials have learned, the federal tax laws are often so complex and bvzantine that it’s not hard to violate them by accident. If you do, there are often criminal penalties attached.

3. Cut corners in your business dealings. The federal mail and wire fraud statutes are so broad that virtually any sharp business [...]

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