Supreme Court Justice Neil Gorsuch said in 2019: “Criminal law has evolved so much to cover so much previously innocent conduct that almost anyone can be arrested for something.” Gorsuch expands on the subject in a new book, showing how criminal penalties give prosecutors enormous power to ruin people’s lives, leading to jury trials being almost entirely replaced by plea bargains.
“Some scholars believe the number of federal statutory crimes exceeds 5,000,” Gorsuch and co-author Janie Nitze wrote in Overdomination: The Casualties of Too Many Lawsand “estimates suggest that At least 300,000 federal agency regulations carry criminal sanctions.
Literally rolls. Gorsuch wrote: “As of 2018, the United States Code contains 54 volumes and approximately 60,000 pages, and as of 2021, “the federal rules cover approximately 200 volumes and more than 188,000 pages.”
Since complying with all these laws is a challenge even for experts, the rest of us cannot hope to know exactly which conduct is a crime, even though “fair notice” is a basic requirement of due process. Civil liberties attorney Harvey Silverglate said “the average busy professional in this country” may inadvertently commit “several federal crimes” every day.
This is only federal law. Citing Judge Robert Jackson’s warning, Silverglett noted that with the vast number of potential charges, “prosecutors can easily succumb to the temptation to first ‘pick a suspect and then search the law books, or let investigators do their work to zero in on someone. people’.
Former President Donald Trump says that’s what happened to him. His complaint was bolstered by 34 felony convictions for paying hush money to porn stars.
Because the same conduct may be construed as multiple violations of state or federal law, prosecutors can coerce a defendant to plead guilty by threatening to throw a book at the defendant. For example, while special counsel David Weiss was initially prepared to drop federal gun charges against Hunter Biden under a diversion agreement, he ultimately indicted the president’s son on three felony counts, all based on the same gun deal Purchase, the total maximum penalty is 25 years.
Why change? Biden decided to let the government prove its case in court after the collapse of a diversion deal and a plea deal to resolve tax charges. Exercising his Sixth Amendment right to a jury trial brought him severe penalties.
Something similar happened to Aaron Swartz, a young computer programmer, entrepreneur, and Internet “hacktivist” who was apparently obsessed with information that he believed should be freely available. Frustrated by the limitations, I downloaded the article from the online academic library JSTOR. When Swartz was arrested, he returned an article and JSTOR deemed the matter resolved.
Nonetheless, federal prosecutors “charged Aaron with wire fraud and three counts under the Computer Fraud and Abuse Act of 1986,” Gorsuch wrote. When Swartz refused to plead guilty, “prosecutors added nine more counts to the charges against him, leaving him now facing decades in prison and millions of dollars in fines.” Swartz said before his trial was scheduled to begin A few months to commit suicide.
Gorsuch noted that as a result of this pressure, approximately 97% of federal felony convictions and 94% of state felony convictions are based on plea deals. The Framers considered jury trial an important bulwark against tyranny, but it plays only a marginal role in our current criminal justice system.
In other words, the more juries needed to check prosecutorial power, the less likely they are to play that role. “The Framers really believed in juries,” Gorsuch noted in the interview New York Times Columnist David French. “I mean, it’s in Article III. It’s in the Sixth Amendment. It’s in the Seventh Amendment. They really believe in juries, and we’ve lost that.”
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