Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution" that controls their daily existence in a way that few of us can imagine. "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, walking, speaking, silent, working, playing, viewing, eating, voiding, reading, alone, with others. . . ." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. -- Justice William Brennan, dissenting in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987).

Thursday, June 12, 2008

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 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."


Anonymous said...

Absolutely true, great posting.
I am also a former prison camp inmate, Pollock LA. I am glad to see that I am not the only one posting the truth. you have my support.

Anonymous said...

Mr. Bailey,

I'm a writer for Forbes magazine interested in speaking with you about the BOP RDAP program for a forthcoming article.

Please contact me at 212 620-2329.


Bill Bailey said...


I am out of the country on vacation at the moment. Can you send message to my email at

Anonymous said...

Don't you have any slow moments to just drop us all a line and let us know what you are up to?

Tea N. Crumpet said...

Bill, please come back!

tanyaa said...

We're following new news in Terri Dickerson's organization including two new hires, and questions about one older who seems to have a New Orleans connection to Dickerson. The Civil Rights web-site is still down leaving many with no answers, no information and none of the required resources under Federal Law.If you follow the DHS link to Coast Guards NO FEAR data you get a dead link. Federal Law requires Coast Guard to publish and maintain this data on-line. For the past week, Coast Guard has been in violation of Federal Law. This may seem trivial, but while Coast Guard continues face failure after failure before the EEOC, it's significant. As agency head, Adm. Allen is the person accountable and responsible for this violation of law. It makes it hard to be a "Chief Law Enforcer," when you're breaking it at the same time.
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Paul Eilers said...

This reminds me of the fiasco pertaining to the Duke lacrosse players.

It is one of the few times I have seen the tables turned on a prosecutor.


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