TheAgitator.com
The Massive Federal Criminal Code
Wednesday, July 16th, 2008A new report from the Heritage Foundation attempts to count the number of laws in the federal criminal code. Author John S. Baker, Jr. estimates we have about 4,500 laws, with another 10,000 if you include federal regulations that can be criminally enforced. But Baker cautions that the code is so Byzantine, vague, and ambiguous, it’s really impossible to come up with a reliable figure. The Constitution lays out just three federal crimes, and for 200 years, criminal justice policy was mostly left to the states. That began to change in the 1970s.
Today’s federal criminal code is enormous—and growing. Baker also finds that Congress tends add more laws during election years (surprise!), that federal judges and prosecutors exacerbate the problem by interpreting federal statutes as broadly as possible (sometimes retroactively), and that new federal laws are increasingly lacking a mens rea requirement.
So we have a bewildering federal criminal code that no one person could possibly completely comprehend, the fact that you can be charged for breaking one of those laws even if you weren’t aware that what you were doing was illegal, and increasingly leeway and discretion afforded to prosecutors to interpret all of these laws as broadly as possible. Throw in the problem of selective enforcement (there aren’t nearly enough resources to prosecute all the crimes on the books), and you have a system where everyone’s a potential criminal, but prosecutors can pick and choose whom to target. Federal prosecutors then win convictions in about 90 percent of their cases—and that’s only those cases that make it to trial. Ninety-five percent of federal defendants take plea bargains (which doesn’t always necessarily mean they’re guilty).
Meanwhile, a new paper from the Cato Institute on federal white collar crime explains how federal prosecutors in corporate crime cases are adopting the Spitzer model, and doing away with trials and courtrooms altogether. N. Richard Janis writes that, "combination of draconian sentences, lack of meaningful judicial control over the imposition of sanctions, and the impossible burdens on company officers have jeopardized the very nature of our adversary system of justice." The Cato study says federal prosecutors’ enormous leverage under the post-Enron regulatory structure allows them to essentially deputize private corporate counsel to go after targeted employees.
I’d add that the broadly written (and even more broadly interpreted) federal conspiracy and racketeering laws make all of this even worse. If federal prosecutors don’t have the evidence to prove the underlying crime, they’ll often fall back on conspiracy or mail or wire fraud charges, which are much easier to prove.
Example of how broadly-written conspiracy laws can entrap the innocent here.
Just wait a few years until they give in to some of the advocates and make murder a federal crime instead of a state crime.
I believe it is impossible to go through life without ,at this point in time, commiting a ’serious offense’.We have reached the point where the law is so all encompassing that all are guilty.We have made laws against those who do no harm(drugs/dui)and those who offend our senses(smoking).We even decide the foods that are legal(trans fat ,goose liver) to keep people from harming themselves.If you want to play poker at you local golf club that too is forbidden by the state.Never mind the tax code.
Federal prosecutors convict 90% of the 5% of defendants that don’t plea bargain? If I’m doing my math correctly that means 99.5% of people accused of federal crimes are guilty.
That’s an amazing, scary number.
Many of the federal cases I’ve seen in the news over the past few years have ended with convictions for nothing more substantial than lying to the government. To me, that means they probably didn’t have a case to begin with, but they weren’t just going to let the subject of their investigation off the hook. They have to justify spending all that money somehow….
Case in point? Martha Stewart. There are many others.
By the way, being convicted of lying isn’t insignificant to the person convicted, since it usually results in jail time.
“Wherever the law is, crime can be found.”
(Aleksandr Solzhenitsyn, “The Gulag Archipelago”, Vol. I, p. 67)
Matt,
Small note: 99.5% of people charged with a federal crime plead or are found guilty.
“There’s no way to rule innocent men. The only power government has is the power to crack down on criminals. When there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”
–Ayn Rand, Atlas Shrugged
IGNORANCE OF THE LAW IS NO EXCUSE FOR BREAKING IT
NOW READ UP
*Uses superhuman strength to drop a semi-truck of legal texts on Theagitator.com*
There should be a law against these sort of laws.
Perlhaqr beat me to it.
Cheers.
It’s nearing shrug time, i think.
I see what you are trying to say here Radley, but what in the world do some of the prosecutors do? These laws do make it awfully easy for the innocent to be guilty. If they weren’t, it would be virtually impossible to prosecute an intelligent and organized criminal, which are most of your white collar criminals. It is a difficult balance to make, but I would agree with you that it has gone too far in recent years. Think about how elaborate the Enron scheme actually was and how many years they got away with it. It likely happens all the time. Millions, and possibly billions of dollars are probably being swindled from hardworking investors, teachers, retirees (you name it) right now as we speak.
Thorn: Feels closer every day…
I used to think a law requiring any provision of the Federal Criminal Code (or heck, entire Federal Code) that has not been involved in an enforcement action in the past *insert years here* should be struck from the books would be a sensible way to limit the growth of these statutes. However, the incentive effects this creates for Federal prosecutors and administrative agencies would probably just make the problem worse. What to do?
“I’d add that the broadly written (and even more broadly interpreted) federal conspiracy and racketeering laws make all of this even worse.”
BINGO!
[/Anecdotal evidence alert]
I sat for 6 weeks on a jury in a Federal case against accused drug smugglers. The DEA couldn’t find money, they couldn’t find drugs, so they trumped up a conspiracy charge. Avoiding having to prove that any actual crime took place, just that they intended at one time or another to commit a crime.
Also just to make your skin crawl a little more, the prosecutors couldn’t even put the conspiracy on the shores of the US. Just vague accusations from a incarcerated Panamanian arms dealer, a paid CI who incidentally got her whole family moved to the US, and whole stream of witnesses to tell us what shitbags the FARC are (which they are, of course).
The main thing I took away from that is DON’T get brought up on Federal conspiracy charges. Whether or not there was an actual operating conspiracy is irrelevant, the burden of proof is so low and juries are so confused by conspiracy all they have to do prove that you are a shit bag or somewhat shady and you are cooked.
FYI I was an alternate, which just pissed me off…
” started in the 1970’s”. I knew it had to be…..NIXON AGAIN! Don’t make a federal case ‘otta it, but “100,000 more police “will certainly make for MORE prisons too! Three million going on four….