Let Judges Use Judgment

I recently found an article that is a nice complement to my article on Prosecutorial Discretion:

Let Judges Use Judgment by Alan Reynolds

The whole article deserves reading but let me summarize with the following excerpt:

Strict bureaucratic sentencing rules, combined with vague federal laws and regulations, are a key reason federal prosecutors no longer have to bother proving their cases to a jury. Federal prosecutors have been able to coerce pleas by threatening that if the case goes to trial they will charge numerous vaguely defined offenses and, in many cases, "forfeit" the accused person's house, car and bank account while waiting for a trial. With the risk of facing multiple counts adding up to decades of mandatory prison time, defendants with any sense of the way this game is played have no practical choice but to plead guilty to a greatly reduced charge with a reduced sentence for "cooperation."

If a misleading letter went through the mail, for example, that could mean 30 years for "mail fraud." If hearsay evidence showed two people were involved in something (which need not be a crime), such a "conspiracy" could add five more years. Accusations of being a "racketeering influenced corrupt organization" (RICO) have been applied to everything from anti-abortion groups to a chicken company.

"Obstruction of justice" is a favorite catch-all, since any remarks short of a full confession might qualify. Section 1001 of the U.S. Code says any person otherwise innocent of any crime can be sent to federal prison for up to five years for concealing a "material fact" or making a "fraudulent" statement in a conversation with any federal official or congressional staffer investigating anything, even though the accused was not under oath and not read his or her rights. Section 1001 is one of dozens of accusations that can trigger asset forfeiture (homelessness and poverty) without trial or admission of guilt.

As Heritage fellow Paul Rosenzweig explained, "Broad and overlapping statutes with minimum obstacles to criminalization and harsh penalties... induce guilty pleas and produce high conviction rates, minimizing the costs of the cumbersome jury system.... And in the absence of any judicial check on this legislative trend, the result is a wholesale transfer of power from elected legislative officials to prosecutors who, in many instances, are unelected and not responsible to the public."