A 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.

If it was indeed left by a prosecutor, this comment at the Volokh Conspiracy speaks volumes.

Georgia’s Supreme Court today encouragingly ruled that once convicted felons have done their time and have been released from prison, judges can’t banish them from the state.

However, the court did rule that judges may exile said criminals to a single county.

Seems like a great way to encourage recidivism.

Meanwhile, another judge in Georgia has sentenced a one-time sex offender (statutory rape) to life in prison for failing (though he did try) to register as a sex offender.

From a strictly utilitarian standpoint, it’s a good outcome. I’m not so sure about the legal reasoning.

In a perfect criminal justice system, I wouldn’t lose much sleep over a repeat child rapist being put to death, any more than I’d lose sleep over a repeat killer getting the same punishment. If it’s not consider cruel or unusual to execute people for heinous murders, I’m not sure why it would be for heinous sex crimes against children.

But in practical terms, the decision is a good one for the same reason any limitation on the death penalty right now is generally a good idea: We’re miles away from a perfect criminal justice system.

From my own experience, I’ve seen far too many cases involving Dr. Hayne alone where he has found evidence of rape or sexual assault where other, more reputable doctors didn’t–and the defendant was convicted, anyway.

And let’s not forget, we have a troubling history in this country of convicting people of child sex abuse charges that later turned out to be false.

So you’re a prosecutor. Your boss, the district attorney, asks you to prosecute a case in which you strongly believe the defendants are innocent. What do you do?  Assume that the DA’s decision to prosecute is based on a good-faith belief in the defendant’s guilt, and there’s no evidence of evidence hiding or other extra-legal malfeasance.

I’m not sure that this guy’s approach was the correct one, but it sure makes for a fascinating story (for those of you who don’t want to click through and read–he took the case, then surreptitiously helped the defense lawyers— and deliberately lost the case in court).

But I’m not sure what the correct course of action should be, either. I’m tempted to say you resign in protest, then tell the defense team what you know. But what if sticking around for a bit longer could help you get access to more information confirming the defendants’ innocence—information that would likely be left undiscovered were you to resign?

Discuss.

Uh-oh.

D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.

Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate “Neighborhood Safety Zones.” At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn’t live there, work there or have “legitimate reason” to be there will be sent away or face arrest, documents obtained by The Examiner show.

Lanier has been struggling to reverse D.C.’s spiraling crime rate but has been forced by public outcry to scale back several initiatives including her “All Hands on Deck” weekends and plans for warrantless, door-to-door searches for drugs and guns.

Under today’s proposal, the no-go zones will last up to 10 days, according to internal police documents. Front-line officers are already being signed up for training on running the blue curtains.

Here’s my favorite part:

Peter Nickles, the city’s interim attorney general, said the quarantine would have “a narrow focus.”

“This is a very targeted program that has been used in other cities,” Nickles told The Examiner. “I’m not worried about the constitutionality of it.”

Obviously not.

Last week, I received the following email:

I live in Eckington, a “transitional” neighborhood in northeast DC. I got a knock on the door this morning from a guy with ACORN (looks like a lefty community group that I’d never heard of) saying that DC police would be coming around shortly asking to search homes in the neighborhood for guns, and explaining we had the constitutional right to refuse, etc. He added that anything the police find they can use against you because “you never know what a friend of a friend might have left in your house” Not sure if he told me this because I had just gotten out of bed and had answered the door in my bathrobe looking disoriented, but I digress. He was handing out a packet of info from the ACLU including a nifty doorhanger you can put out that says “NO CONSENT TO SEARCH OUR HOME”. One of my neighbors told me the guy told them they were only doing this in poor black neighborhoods, and this notice from the ACLU that I found online seems to bear this out.

I know it’s not exactly a wrong-door no-knock raid, but I am concerned because while I certainly don’t want the police (or any other strangers) rummaging through my junk, I’m kind of afraid of what would happen if I refuse the search. I already live on one of those streets with the surveillance cams installed. Does my address get ‘marked’ for being uncooperative or suspicious? I should mention of course that I don’t own any guns and have never touched anything more powerful than a bb gun.

You are free to refuse the searches. But if a regular reader of this site feels uncomfortable asserting that right, you can imagine how other people subject to these searches might feel. Despite the promises of amnesty, I have a hard time believing you’re going to get off if you allow the police into your home and they find significant amounts of drugs or weapons.

Chicago Alderman Dick Mell forgot to register his guns with the Chicago Police Department this year. He’s required to do so under one of the toughest gun laws in the country, a law he helped pass.

Mell first sought to play the "do you know who I am" card, and bully Chicago PD’s gun registration division into granting him an exception. They declined (good on them for that).

No problem. Mell has since introduced a new law that would give Chicagoans who forgot to register their guns last year a one-month grace period in which they can re-register without penalty.

Mell helpfully explains:

"It’s not just for me. It’s for other people with the same problem. It’s giving people who legitimately registered their guns at one time only to let it slip by a chance to come back into compliance," Mell said. "Some people didn’t realize that, every year, you have to re-register your guns."

By the way, if you move to Chicago, you can forget about buying a handgun like one of those Mell owns. They’ve been banned since 1982. Mell was grandfathered in. Judge for yourself how well the ban has protected Chicagoans from gun violence.

If you’ll remember, Justice Scalia argued in Hudson v. Michigan that the Exclusionary Rule isn’t necessary in the case of illegal no-knock raids because there are less drastic, more effective ways of deterring police officers from conducting illegal searches. The ruling was of course confined to the issue of wrongful no-knock searches, but it’s no secret that Scalia and other Federalist Society types want to do away with the Exclusionary Rule altogether. These other methods of deterring police from conducting illegal searches, Scalia argued, include a vague “new professionalism” in police departments across the country (which, the scholar Scalia improperly quoted has explained, is due to the fact that police have been held accountable when they do conduct illegal searches by the exclusion of evidence), civil rights suits from people who have been wrongly searched, and internal disciplinary procedures against offending officers.

Scalia’s first reason is debatable at best. And as we’ve seen, his other two remedies rarely happen, in part thanks to rulings from judges like Scalia, who have made it increasingly difficult to sue an agent of the government.

Here’s the latest piece of evidence against Scalia’s argument that police are usually disciplined by their own departments for conducting illegal searches:

But a closer look at those prosecutions reveals something that has not been trumpeted: more than 20 cases in which judges found police officers’ testimony to be unreliable, inconsistent, twisting the truth, or just plain false. The judges’ language was often withering: “patently incredible,” “riddled with exaggerations,” “unworthy of belief.”

The outrage usually stopped there. With few exceptions, judges did not ask prosecutors to determine whether the officers had broken the law, and prosecutors did not notify police authorities about the judges’ findings. The Police Department said it did not monitor the rulings and was aware of only one of them; after it learned about the cases recently from a reporter, a spokesman said the department would decide whether further review was needed.

Though the number of cases is small, the lack of consequences for officers may seem surprising, given that a city commission on police corruption in the 1990s pinpointed tainted testimony as a problem so pervasive that the police even had a word for it: “testilying.”

And these cases may fuel another longtime concern that flared up again in recent days: suspicions that the police routinely subject people to unjustified searches, frisks or stops.

[...]

Federal judges rarely suppress evidence, Judge Martin said, and the unusual number of suppressions in New York City gun cases raises questions about whether such tactics may be common. “We don’t have the statistics for all the people who are hassled, no gun is found, and they never get into the system,” he said.

The point here is not that a small number of police officers were caught conducting illegal searches. The point is that they weren’t in any way held accountable for conducting them, even after called out in court by a judge. Those internal disciplinary procedures aren’t merely not working very well, they’re practically nonexistent.

The top justification for the massive invasion of privacy that is Britain’s CCTV system isn’t panning out:

Massive investment in CCTV cameras to prevent crime in the UK has failed to have a significant impact, despite billions of pounds spent on the new technology, a senior police officer piloting a new database has warned. Only 3% of street robberies in London were solved using CCTV images, despite the fact that Britain has more security cameras than any other country in Europe.

It is, however, a great way for CCTV monitors to get cheap thrills.

Jeff Brown of Columbus, Ohio was arrested for DWI, spent four days in jail, and had his license suspended for six months when he refused to take a breath test after an officer confronted him on suspicion of operating a vehicle while intoxicated. Brown was walking his bicycle across his own front yard. Brown has since made a YouTube video detailing his ordeal.

Via Lawrence Taylor, who notes that in 2005, a woman in Florida was arrested for DWI for operating her own wheelchair while intoxicated. That case, fortunately, was thrown out.

A longtime reader writes:

Last night, my sister’s boyfriend was pulled over. They searched him and found a small amount of marijuana on him. Going through his wallet, they thenf ound a picture of my sister and her kids. The officer called the department of human services on my sister… who was NOT with him at the time, nor were her kids.

They came to talk to her today and they are forcing her to take a drug test.

The thing is… she would definitely fail.

Is this even legal to do? Guilt by association? I am not sure whom she can talk to, and she most assuredly cannot afford a lawyer.

I don’t know the answer. They certainly have no criminal case against her. But I’m not sure about the law when it comes to protective services agencies. I suspect they’re permitted to take measures police investigating possible criminal charges can’t. Still, you’d think they’d need more to go on than a photo in the wallet of someone arrested for a small amount of marijuana.

The person who sent the email gave me permission to throw it out for general discussion. So have at it.

John McCain is promising more John Roberts and Sam Alitos on the Supreme Court if he’s elected president. Cato’s Ilya Shapiro weirdly thinks this is a reason for libertarians to vote for McCain.

Here’s George Washington University con law Professor Johnathan Turley on Alito:

Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito’s cases reveal an almost reflexive vote in favor of government…

…In my years as an academic and a litigator, I have rarely seen the equal of Alito’s bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe.

[...]

As an assistant solicitor general, Alito strongly opposed the ruling of a court of appeals in the seminal case of Garner v. Tennessee. In that case, a police officer shot and killed an unarmed 15-year-old boy when he fled with $10 from a home. Alito supported the right of the officer to kill the boy for failing to stop when ordered, a position ultimately rejected by six members of the Supreme Court and decades of later decisions.

Likewise, Alito authored another memo that argued strongly in favor of giving immunity to officials who violate the rights of citizens — a position long rejected by the federal courts.

As he did as a Reagan administration attorney, Judge Alito often adopts standards so low that any government excuse can overcome any government abuse.

[...]

An independent judiciary means little if our judges are not independently minded. In criminal, immigration and other cases, Alito is one of the government’s most predictable votes on the federal bench. Though his supporters have attempted to portray this as merely a principle of judicial deference, it is a raw form of judicial bias.

The Alito vote might prove to be the single most important decision on the future of our constitutional system for decades to come. While I generally defer to presidents in their choices for the court, Samuel Alito is the wrong nominee at the wrong time for this country.

As for Roberts, in his book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, Boston Globe reporter Charlie Savage devotes seven pages to Roberts’ career of defending government power (particularly presidential power).

Roberts, from the beginning of his legal career and straight through to the Hamdan decision, had demonstrated his unwavering commitment to expand presidential power.

These aren’t libertarian judges. They’re judges who defer to police and prosecutors on criminal justice issues, who would put broad restrictions on your ability to sue government agents who have wronged you, and who embrace the Unitary Executive, essentially the belief that when it comes to foreign policy and national security (and a number of other issues), the president’s powers are unlimited, absolute, and unchecked by either Congress or the courts. That isn’t an exaggeration.

Roberts and Alito also both voted the wrong way in Hudson vs. Michigan, the no-knock raid case. Not only that, but Alito’s vote proved to be the tiebreaker. Had Sandra Day O’Connor not retired, it’s likely that Hudson would have gone the other way.

Bush (or more likely Cheney) chose Roberts and Alito for one very specific reason: Both have proven throughout their careers to be reliable defenders of presidential power.

More judges like Alito and Roberts is the last reason a libertarian should vote for John McCain.

Via the comments to this Eugene Volokh post, it looks like the Ninth Circuit has just thrown out (pdf) a guilty verdict over precisely the problems with predicting odds when doing cold DNA database searches that we discussed earlier this week. Excerpt from the opinion:

Here, [DNA expert Renee] Romero initially testified that [defendant Troy Don Brown]’s DNA matched the DNA found in [rape victim Jane Doe]’s underwear, and that 1 in 3,000,000 people randomly selected from the population would also match the DNA found in Jane’s underwear (random match probability). After the prosecutor pressed her to put this another way, Romero testified that there was a 99.99967 percent chance that the DNA found in Jane’s underwear was from Troy’s blood (source probability). This testimony was misleading, as it improperly conflated random match probability with source probability. In fact, the former testimony (1 in 3,000,000) is the probability of a match between an innocent person selected randomly from the population; this is not the same as the probability that Troy’s DNA was the same as the DNA found in Jane’s underwear, which would prove his guilt. Statistically, the probability of guilt given a DNA match is based on a complicated formula known as Bayes’s Theorem, see id. at 170-71 n.2, and the 1 in 3,000,000 probability described by Romero is but one of the factors in this formula.

Once again, it’s worth noting that if other evidence points to a suspect, and you then get a match to your suspect after running the crime scene DNA against a database, you can be reasonably certain of guilt. I’m just wary of using cold matches as the starting point of an investigation. Precisely because many people misunderstand the fairly high odds of false matches with large databases, you run the risk of the investigation becoming more about finding proof that the match committed the crime than about investigating who committed the crime. The problem grows when you’re talking about decades-old cases where evidence has degenerated, witnesses have died, and records may or may not still be around.

First, have a look at this video, from tonight’s episode of 60 Minutes:

Brady v. Maryland was the Supreme Court case that made it illegal for prosecutors to withhold exculpatory evidence from defense attorneys. The problem is that there’s rarely if ever any punishment for breaking the rule, even when it has led to wrongful convictions and imprisonment.

Dallas County District Attorney Craig Watkins, featured in the above video, is now publicly advocating that prosecutors who knowingly violate the rule (that is, who knowingly break the law) should face criminal charges, not just professional sanctions (which also rarely happen).

"Something should be done," said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. "If the harm is a great harm, yes, it should be criminalized."

Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

Such ideas could not be more at odds with the win-at-all-costs philosophy that was the hallmark of legendarily hard-line Dallas County District Attorney Henry Wade and, to a lesser extent, of subsequent administrations.

It is rare for a prosecutor to advocate strict penalties for misconduct – even when it’s intentional, said Mr. Gershman, a former New York prosecutor. "I couldn’t give you five cases in the last 40 years of criminal charges against prosecutors," he said.

The Duke lacrosse case was great in that it brought national attention to the possibilty of wrongful prosecutions and prosecutorial misconduct. But it may have also fostered the misconception that prosecutors like Mike Nifong are routinely punished when they make the same mistakes he made. In truth, it almost never happens. Still, it’s fun to watch law-and-order, "the law is the law" prosecutors backpedal when asked why they themselves shouldn’t face charges when they violate the law.

Watkins, by the way, is a rock star. Read my interview with him here.

Steve Chapman had a column last week about the benefits of assembling large DNA databases of the populace for the purpose of solving crimes.

The L.A. Times has a story this weekend on why that creates some problems that might not be readily apparent.

The main problem is that the odds of a false match increase exponentially when you’re running a DNA sample against a database of hundred of thousands of people (in Britain, the number is well into the millions)–a Bayes’ Theorem problem. The problem is exacerbated when you’re dealing with decayed DNA from old “cold cases,” where you have even fewer markers than in well-preserved DNA samples.

Let’s say the U.S. adopts a Great Britain policy on collecting DNA–basically a move toward, at some point in the future, having DNA on file for everyone in the country. Well now the 1 in 1.1 million odds against the suspect in the L.A. Times case are being run against a database of 380 million people. The numbers say that you’re going to pull up about 345 matches in the U.S. alone. In the California case, the database is obviously much smaller than the entire U.S. population, and only one of those 345 people showed up from the 330,000-person FBI DNA database–the (admittedly unsympathetic) subject of the article. But any of the other 344 potential matches in the U.S. (or the 2,200 matches worldwide) could have committed the crime. They just weren’t in the database.

DNA database searches are an excellent starting point for law enforcement. But given the odds of false matches when running DNA against an extensive database, we should be very careful about moving the burden of proof onto matches to prove their innocence. It’s also unfortunate that the judge in the case profiled in the L.A. Times would only allow the prosecution’s miscalculated 1 in 1.1 million chance of a false match into evidence, and not the more statistically sound 1 in 3. Even if one were to accept the idea that the scientific community is divided over the proper way to calculate the possibility of a false match (and I’m not convinced there’s really that much of a debate), you’d think a judge should either allow the jury to be made aware of that division of opinion, and that there are serious statisticians and scientists who would put the odds much, much lower than the odds suggested by the prosecutors in the case.