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The Corner

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On the Power of the Prosecutor



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A must-read from Radley Balko can be found here.

Some key extracts:

There have been a number of projects that attempted to count the total number of federal criminal laws. They usually give up. The federal criminal code is just too complex, too convoluted, and too weighted down with duplications, overlapping laws, and other complications to come to a definite number. But by most estimates, there are at least 4,000 separate criminal laws at the federal level, with another 10,000 to 300,000 regulations that can be enforced criminally. Just this year 400 new federal laws took effect, as did 29,000 new state laws. The civil libertarian and defense attorney Harvey Silverglate has argued that most Americans now unknowingly now commit about three felonies per day.

But you, citizen, are expected to know and comply with all of these laws. That isn’t possible, of course. It would probably take you most of the year to understand them all, at which point you’d have the next year’s batch of new laws to learn. You’d probably also need to hire a team of attorneys to help you translate the laws into terms you can understand. After the McCain-Feingold legislation passed in 2003, for example, both parties held weekly, three-hour classes just to educate members of Congress on how to comply with the bill they had just passed. This is a bill they wrote that applied to themselves, and they still had to bring in high-paid lawyers explain to them how not to break it.

I wish I could say that I was surprised.

And yet still the juggernaut rolls on, slowly strangling liberty and enterprise.

Balko:

We need to move away from the idea that every act we find immoral, repugnant, or unsavory needs to be criminalized. Every new criminal law gives prosecutors more power. Once we have so many laws that it’s likely we’re all breaking at least one of them, the prosecutor’s job is no longer about enforcing the laws, but about choosing which laws to enforce.

And as to how that discretion is exercised, well, how to account for that?

Read the whole thing. Really. 



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