When Everything is a Crime

"..the proliferation of federal criminal statutes and regulations has reached the point that virtually every citizen, knowingly or not (usually not) is potentially at risk for prosecution," even for "crimes that involve no actual harm or ill intent," warns law professor Glenn Harlan Reynolds. Prosecutors wield enormous power in which crimes - and whom - they choose to charge, and there are few restraints. "The consequences are drastic and troubling," particularly if a prosecutor "is anxious to go after a political enemy." Take 2 recent high profile cases:

NBC anchor David Gregory violated the law when, on air, he held a 30-round gun magazine (illegal in DC) for his audience to see, and prosecutors chose not to charge him. Reddit founder Aaron Swartz violated the law when he downloaded "academic journal articles from a closed database," but prosecutors so aggressively pursued his case that Swartz "committed suicide in the face of a potential 50-year sentence."

Both cases have aroused criticism, and in Swartz's case even legislation designed to ensure that violating websites' terms cannot be prosecuted as a crime. But the problem is much broader.
       -snip-
...once charged with a crime, citizens are in a tough positions. First, they must bear the costs of a defense, unless they're indigent. Second, even if they consider themselves entirely innocent, they will face strong pressure to accept a plea bargain, pressure made worse by the modern tendency of prosecutors to overcharge with extensive "kitchen-sink" indictments.
      -snip-
The result of overcriminalization is that prosecutors no longer need to wait for obvious signs of a crime. Instead of finding Professor Plum dead in the conservatory and launching an investigation, authorities can instead start an investigation of Colonel Mustard as soon as someone has suggested he is a shady character. And since ... everyone is a criminal if prosecutors look hard enough, they're guaranteed to find something eventually.

Reynolds asserts it is time that "the decision to charge a person criminally should itself undergo some degree of due process scrutiny." He offers five ideas to open discussion and encourages those in the legal community to present their own.

1. Rather than granting prosecutors absolute immunity against lawsuits, shift to a "qualified good faith immunity" to ensure prosecutors have "some skin in the game" along with defendants.
2. Implement a "loser pays" rule for criminal defense costs. Those found not guilty wouldn't bear the heavy cost of criminal defense. Prorate it in the case of multiple charges: "Charge a defendant with 20 offenses, but convict on only one, and the prosecution pays 95% of the defendant's legal fees."
3. The nuclear option: ban plea bargains. "An understanding that every criminal charge filed would have to be either backed up in open cour or ignominiously dropped would significantly reduce the incentive to overcharge."
4. Require all plea bargains to be presented to a judge or jury before sentencing.
5. Consider whether regulatory violations should bear criminal sanctions at all.

For more, read:
Reynold's six-page paper, Ham Sandwich Nation: Due Process When Everything is a Crime.
Conor Friedersdorf: 8 Ways to Stop Overzealous Prosecutors from Destroying Lives
Roger Kimball: Ayn Rand and the Criminalization of Everyday Life

UPDATE: Reynold's cites this little passage from Ayn Rand's Atlas Shrugged in his blog post at Instapundit:

"Did you really think that we want those laws to be observed?" said Dr. Ferris. "We want them broken. You'd better get it straight that it's not a bunch of boy scouts you're up against — then you'll know that this is not the age for beautiful gestures. We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crim that it becomes imossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted — and you create a nation of law-breakers — and then you cash in on guilt. Now, that's the system, Mr. Rearden, that's the game, and once you understand it, you'll be much easier to deal with."