The Criminalization of Almost Everything

The Heritage Foundation is sponsoring a seminar on Tue, June 17, 2008 titled:

"Go Directly to (Federal) Prison: The Criminalization of Almost Everything"

I love the title because I have come to believe that any sufficiently motivated prosecutor could put anyone in prison for the violation of some federal law. In other words, if I randomly selected a citizen and assigned a federal prosecutor the task of investigating and prosecuting that individual, the scope (and ambiguity) of federal law and prosecutorial discretion and the severity of federal sentencing is such that he could put that citizen in prison. Even if that citizen if absolutely innocent, the plea bargaining leverage a prosecutor has would induce almost any rational person to accept a short prison term in order to avoid the expense of a trial and possibility of a very long sentence.

Robert Jackson, US Attorney General, made a famous speech almost 70 years ago that included the following remarks:

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

There is absolutely no doubt that the scope of federal law has expanded in almost every respect (especially drug and white collar crimes) and, with the development of the sentencing guidelines, Jackson's comments are even more true. A federal prosecutor is the most dangerous individual in America. That is not meant to impugn the prosecutorial function or the integrity of prosecutors in general; it is simply meant to draw attention to the virtual unchecked and unaccountable power that federal prosecutors have.

It is only human nature that concentrated, unchecked power will be abused.

The solution I believe is what this seminar addresses -- eliminate the vast majority of federal laws and return criminal enforcement to the states where the Constitution expected it to reside.

See http://www.heritage.org/press/events/ev061708b.cfm for more details.

UPDATE (6/22/08): I just listened to the video of the seminar at the link above and I was startled to discover that these guys agree with me. The law professor from Louisiana actually said that every individual in this country is indictable, subject only to the discretion of a prosecutor. Also, everyone involved in the criminal justice system except for Congress, DOJ and presidential staffers know the system makes no sense. The reason the system exists is because federal politicians discovered that federalizing offenses makes for good politics because no one wants to be portrayed as being "soft on crime."