‘Too Much Law’ Gives Prosecutors Vast Power to Destroy People’s Lives

“Criminal law has grown so large and encompassed so much previously innocent conduct that almost anyone can be arrested for something,” Supreme Court Justice Neil Gorsuch observed in 2019. Gorsuch expands on that theme in a new book, showing how the proliferation of criminal penalties has given prosecutors enormous power to ruin people’s lives, leading to the near-complete replacement of jury trials with plea bargains.

“Some scholars estimate the number of federal crimes at more than 5,000,” Gorsuch and co-author Janie Nitze note in Overriding: The Human Cost of Too Much Lawwhile “estimates suggest that at least 300,000 federal agency regulations carry criminal penalties.” The fact that none of these numbers are known precisely says much about the expansion of federal law.

Literally volumes. “As of 2018, the United States Code spanned 54 volumes and approximately 60,000 pages,” Gorsuch writes, while “the Code of Federal Regulations spanned approximately 200 volumes and more than 188,000 pages” in 2021.

Because keeping up with all of these laws is a challenge even for experts, the rest of us can’t hope to know exactly what conduct is a crime, even though “fair notice” is a basic requirement of due process. Civil rights lawyer Harvey Silverglate has suggested that “the average busy professional in this country” could be unknowingly committing “several federal crimes” every day.

And that’s just federal law. With the vast pool of potential charges, Silverglate notes, citing a warning from Justice Robert Jackson, “prosecutors can easily be tempted to ‘pick a man first and then search the law books or put investigators to work trying to pin a crime on him.’”

Former President Donald Trump claims that’s what happened to him. His 34 convictions for paperwork violations related to hush money paid to a porn star provide evidence to support that claim.

Because the same conduct can be construed as multiple violations of state or federal law, prosecutors can pressure defendants to plead guilty by threatening to throw the book at them. Although special counsel David Weiss was initially willing to drop the federal gun charge against Hunter Biden under a deferred action agreement, he ultimately charged the president’s son with three felonies, all based on the same gun purchase, with a combined maximum sentence of 25 years.

Why the change? After a reversal agreement and a guilty plea agreement resolving tax charges fell apart, Biden decided to force the government to prove its case in court. Exercising his Sixth Amendment right to a jury trial carried stiff penalties.

Something similar happened to Aaron Swartz, a young computer programmer, entrepreneur, and Internet “hacktivist” who, apparently frustrated by the limitations of information that he believed should be freely available, downloaded articles from JSTOR, an online academic library. When Swartz was caught, he returned the articles, and JSTOR considered the matter resolved.

Still, federal prosecutors “charged Aaron with telecommunications fraud and three counts under the Computer Fraud and Abuse Act of 1986,” Gorsuch writes. And when Swartz refused to plead guilty, “prosecutors added nine more counts to the charges, now exposing him to decades in prison and millions in fines.” Swartz committed suicide months before his trial was scheduled to begin.

As a result of such pressures, Gorsuch notes, about 97 percent of federal felony convictions and 94 percent of state felony convictions are based on plea agreements. Jury trials, which the framers of the Constitution saw as a necessary safeguard against tyranny, play only a marginal role in our current criminal justice system.

The more juries are needed to check prosecutorial power, the less likely they are to fulfill that role. “The government really believed in juries,” Gorsuch noted in an interview with 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 believed in juries, and we lost that.”

The article “Too Much Law” Gives Prosecutors Vast Power to Destroy People’s Lives first appeared on Reason.com.