
Ham Sandwich Nation: Due Process When Everything Is a Crime - jervisfm
http://columbialawreview.org/ham-sandwich-nation_reynolds/
======
techsupporter
"It is also worth considering whether mere regulatory violations—malum
prohibitum rather than malum in se—should bear criminal sanctions at all.
Traditionally, of course, citizens have been expected to know the law. Yet
traditionally, regulatory crimes usually applied only to citizens in specialty
occupations, who might be expected to be familiar with applicable regulatory
law."

This is a particular peeve of mine. Throwing someone in prison should require
demonstrable harm worthy of the state swinging its hammer. Fraud is already a
crime, so is theft, so is deception in its various forms. Failure to fill out
a form or making a mistake in light of a rule should not carry the risk of a
criminal record.

By the way, "The Illustrated Guide to Law"[0] has an outstanding section on
the concept of regulatory breaches as crimes and why they shouldn't be the
cause of someone being thrown into jail.

0 - [http://lawcomic.net](http://lawcomic.net)

~~~
techsupporter
Now that I'm on a regular computer, this is the section that goes into detail
about strict liability:
[http://lawcomic.net/guide/?p=1008](http://lawcomic.net/guide/?p=1008)

It describes, as an example, someone who picks up a feather that a bird
discarded in the ordinary course of its life and someone else whose supplier
delivered product in violation of a state rule. Both examples happen to deal
with permutations of endangered species acts but the chapter discusses the
broader concept of "overcriminalization."

(Hat tip to author Nathan Burney.)

------
bostik
In some of my not-entirely-sober states of mind I have sometimes thought of
ways to eliminate prosecutorial overreach. (It's a problem outside US too.)

A very simple approach would be that for each count that the defense can
strike off as irrelevant or spurious, they would also get to strike off _any_
other charge of their choosing. That alone would make prosecutors extremely
wary of bringing up random charges in hopes of seeing which they can make
stick. They would need to have solid evidence for each charge or risk having
the most serious ones nullified.

On the other hand, I'm not naive enough. The cure could well be worse than the
poison it was meant to address.

~~~
gamblor956
Your idea is already addressed by standard criminal procedure, except for the
bizarre part about letting the defense strike off any charge of its choosing.

In a nutshell: after the arraignment but before trial, they have a court
hearing (the "preliminary hearing" aka "probable cause hearing", see
[http://en.wikipedia.org/wiki/Preliminary_hearing](http://en.wikipedia.org/wiki/Preliminary_hearing)
for a layman's description) in which the prosecution is required to lay out
sufficient evidence to justify each charge. They don't have to provide
evidence sufficient to prove guilt (yet, because that is the jury's function)
but they have to show sufficient evidence that a jury _could_ find guilt.
Charges which do not satisfy even this basic level of substantiation are
dropped by the court.

Edit: You can downvote this comment all you want; it doesn't change the fact
that preliminary hearings have been a basic part of US criminal jurisprudence
for decades, functioning more or less exactly as described above.

~~~
graeme
I'm not sure you grasped the parent comment's point. The idea was that there
would be a penalty to include charges that could be struck out at a
preliminary hearing.

As it stands, there is incentive to threaten a defendant with onerous charges
that would never stand up in court. Most cases are settled by plea bargains.
I'm not clear on the statistics, but I think this means they never reach
preliminary.

Under the parent's proposal, the prosecution could not introduce spurious
charges without risking losing their actual legitimate charges.

I don't know what the unintended consequences would be, but striking off the
charges is not a "bizarre" part of the proposal. It's the point of the
proposal.

------
maxcan
It is kind of shocking to me that the state isn't liable for defendants' legal
fees in the face of an acquittal. If I sue someone in civil court on frivolous
grounds, they can countersue me yet no parallel exists in the criminal realm.
Perhaps more than just an acquittal is necessary and you'd have to show some
sort of prosecutorial overreach to collect. But, in that case, the damages
should include compensatory and punitive damages.

~~~
hyperion2010
The incentives don't line up properly if the state pays because the lawyer is
the decision maker in these cases. Unfortunately DAs are rather underpaid and
so it would probably be a nonstarter to to make them pay the defendant's legal
fees.

~~~
DerpDerpDerp
Why not make the jurisdiction that the prosecutor works for responsible for
paying attorney fees if the person is acquitted?

They were sure enough to seriously upset and damage a person's life when they
pressed charges, and they better be willing to at least cover the cost of a
defense when they're wrong.

~~~
kiallmacinnes
I totally agree - but this does have downsides too, prosecutors will be fired
if their loose rate (i.e. cost) is too high, which will lead to only
prosecuting guaranteed wins.

I still think that's a better system though...

~~~
DrewRWx
It would also ramp up the already absurd focus on quick, cheap plea bargains.

~~~
DerpDerpDerp
One thing to think about is that it lowers the cost of a defense if you're
relatively sure you'll win.

Under the current system, a plea bargain is something like "Take 2 years in
jail and pay $50-100k less or face 10 years in jail at trial, where you
probably can't even afford a real defense."

Under the new system, a plea bargain would have to offer considerably more to
the point it's obviously problematic, because acquitted defendants wouldn't
still be out the money required to beat the system. Further, it's likely poor
people will have better access to top notch lawyers if the lawyer can expect
to recoup their cost from the state (rather than just not being paid by the
poor person).

~~~
mjmahone17
The other nice thing: you could actually get lawyers to work on the grounds of
"you only pay if we win" for criminal cases. This would, presumably, mean
"state-provided" defense lawyers would be the best available, as opposed to
whoever they can scrounge up as a public defender.

Also, presumably, the cost of good legal defense should be less than the
$20,000 cost/year for incarceration.

------
lotsofmangos
_If you give me six lines written by the hand of the most honest of men, I
will find something in them which will hang him._

Attributed to Cardinal Richelieu, or possibly one of his agents.

edit - I think if Richelieu could see today's security apparatus he would be
very pleased with how far we have managed to move forward his ideas.

~~~
peteretep

        > I think if Richelieu could see today's security
        > apparatus he would be very pleased with how far we
        > have managed to move forward his ideas.
    

Yes. American centralization of power under royalty and French world dominance
are clearly in ascendancy.

~~~
lotsofmangos
If they made missing the point an Olympic sport, you would get lost on your
way to the podium to collect the gold medal.

------
alexeisadeski3
Many interesting solutions are posited throughout the comments section. I've
no doubt that many of them would help at least a bit.

But the most important change must come from within the hearts of the voters
that control western governments: Voters _like_ prosecutorial overreach, as
they consider every person dragged into court "guilty of something."

Until that attitude changes, meaningful change will be difficult.

~~~
moron4hire
I wonder how much of that is a result of the TV Cop Show effect? For decades
now, we've had shows that portray suspects as certainly guilty, just in need
of the proving. If the suspect gets away, it's due to "technicalities", and
particularly "edgy" shows will paint cops as heroes who frame/murder such
people. Confessions coerced out of suspects through intimidation or physical
torture are portrayed as "walking a moral line", rather than being COMPLETELY
over into FLIPPING ILLEGAL.

~~~
judk
We used to have Perry Mason and Matlock, where the defense attorneys were the
heroes of the show.

What happened?

~~~
elliotz
Even law enforcement characters were upright:

[http://www.youtube.com/watch?v=0wL9Li0f1Po](http://www.youtube.com/watch?v=0wL9Li0f1Po)

------
vaadu
"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 crime that it becomes
impossible 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 lawbreakers-and then you cash in on guilt." -Atlas
Shrugged

~~~
angersock
I generally shy away from endorsing things from Atlas Shrugged, but that
rather hits the nail on the head.

------
netcan
There are a bunch of things which (IMO) are in this family of problems.
Prosecutors discretion , everything is a crime is certainly one problem that
seems to exist to a scary degree in every modern law system. Sodomy remained a
crime long after it stopped being prosecuted. It had always been prosecuted
selectively anyway.

A related issue of selective investigation and arrest by police. Perhaps more
scary because of the Polices’ greater exposure to the public. This comes into
play a lot with discrimination and political oppression.

Then we have judicial discrepency. That might be the trickiest one. Among its
many effects, it allows plea bargaining to create a very big gap between a
negotiated plea and the potential outcome of a court case. Take one year or
risk five. Just confess and take the reduced sentence. A defining feature of
show trials is forced confessions. Confess. Beg forgiveness and mercy. That is
using incredible pressure to deny accused their day in court and a trial where
both sides present their case.

Then after a sentence is passed, the actual length and severity of prison
sentences is in practice determined by the prison system which has its own
arbitrary and/or discretionary powers.

Rule of law is hard, genuinely. Could courts even handle a system without plea
bargains?

~~~
einhverfr
> Rule of law is hard, genuinely.

Rule of law is _impossibly_ hard. The idea is that we are a government of
laws, not a government of men, but someone has to decide what to prosecute and
so in the end at most it is a plausible fiction and rule of law ends up
reducing to "rule by prosecutor."

This is one of the insidious aspects of mandatory sentencing guidelines for
example is that they shift power from judges to prosecutors.

~~~
netcan
Is it? One thing that puts what could be called inappropriate power in the
hands of prosecutors is the discretionary sentencing. If you could go to jail
for one year or ten for the same crime, and the prosecutor promises to ask for
one if you confess and apologise, they have a lot of leverage. It makes
claiming innocence punishable itself.

I suppose they bypass anyway by selecting the charge/law that you are going to
be prosecuted under. Hard.

------
binarytrees
It's only getting worse. Some DA offices are asking for DNA samples from minor
offenses ( Misdemeanors ) for a decent plea or no time. When your only job is
to win and put people away you're going to do whatever you can to accomplish
this. It's the same as any company trying to dominate a particular industry or
become the best. Our Justice system needs another change similar to the change
from punishment to rehabilitation.

~~~
bmelton
It's _even_ worse than that, actually. In Pittsburgh, PA, police were taking
DNA samples at roadblocked checkpoints. Not sobriety checkpoints, mind you --
roadblocks established solely for the purpose of collecting DNA from the
citizenry.

~~~
DanBC
That's shocking.

How long are the DNA samples kept for?

It's a bit scary that "they" seem to want everyone on their DNA databases,
rather than realising the database is more effective if they try to only
include the criminals.

~~~
venomsnake
I can bet that no matter what is on the books, the real answer is close to
forever about how long they are kept. The huge funneling of money into law
enforcement from war on drugs and terror creates the mentality.

------
tootie
In my limited experience the notion that you can "indict a ham sandwich" is
simply not true. I sat on a grand jury once for 2 weeks. Most cases brought to
us were patently guilty and the ones that weren't were met with extreme
scepticism. We declined to indict at least a few defendants where the evidence
was weak.

~~~
clamprecht
If I'm not mistaken, if the prosecution can't get a grand jury to indict, they
can try again later (perhaps with a slightly modified set of charges). In
other words, there is no "double jeopardy" for trying to indict someone. Maybe
someone who knows for sure can confirm whether this is accurate.

~~~
tootie
That's correct. But the cards are stacked heavily in favor of the prosecution
in a grand jury so if you fail to indict, you're never going to get a
conviction.

------
qwerta
Due Process in US is a parody. California makes it even worse with stuff like
recent law about drunken sex consent. Add astronomical prices and you get
toxic environment.

I have plenty of job offers, but I would never move to California.

~~~
einhverfr
It is not criminal law, but you should see the vagueness in the Unruh (anti-
discrimination) Act.

California is the only state I know of where the ACLU has been successfully
sued for discrimination.

------
Zigurd
The US has an insanely outsize prison population. It didn't get that way
without people being arrested by a growing army of militarized police, and, in
most cases, plea bargaining with an aggressive prosecutor.

~~~
thrownaway2424
That doesn't really have anything to do with the proliferation of laws. Almost
all prisoners are in prison for a narrow range of offense classes: violence,
theft, and drugs. At the federal level there's also a lot of immigration
violators.

The explosion in prison population is not related to an increase in the rate
of arrest and conviction. It's related to a huge increase in the number of
years of incarceration per offense.

~~~
midas007
One encourages the other. But yes, it's "throw 'em away forever."

------
jessaustin
I'm very sympathetic to this point of view, but the author starts
inauspiciously when he asserts that a news anchor should have been prosecuted
for using a high-capacity gun magazine as a visual aid in his newscast.
Perhaps he's had his mind made up about prosecutorial discretion too long to
see this episode as an example of discretion done right.

~~~
rossjudson
Exactly. Reynolds deliberately lies about the what the prosecutor said _in his
first paragraph_. The prosecutor _did not_ state that the on-air violation was
clear. What he said was that the device "meets the definition" of the statute.

Gregory was displaying the "device" during a newscast.

bran·dish verb gerund or present participle: brandishing 1\. wave or flourish
(something, esp. a weapon) as a threat or in anger or excitement.

Did he "brandish" the device? No. Reynolds knows that, but he decides to draw
a false equivalence anyway.

~~~
mason240
So you would be willing to "displaying the device" on a street in a poor DC
neighborhood since you are certain that you would be within the law?

~~~
rossjudson
Of course not. In a public space, without appropriate context? You know this
already. Keep looking for some way to find that Reynolds is right.

If the law meant to say "display", it would have said "display". The law says
"brandish". That has a meaning.

Did Gregory brandish the device with anger, or intent to threaten?

~~~
mason240
Why would the public setting, or even context matter? If you are only
"displaying" and not "brandishing," you'll be fine.

------
higherpurpose
This goes hand in hand with the "3 felonies a day" Americans are committing:

[http://online.wsj.com/news/articles/SB1000142405274870447150...](http://online.wsj.com/news/articles/SB10001424052748704471504574438900830760842)

~~~
jlcx
This was mentioned in the article, along with Gene Healy's "Go Directly to
Jail: The Criminalization of Almost Everything".

------
mariodiana
From the essay: "Despite the problems described above, most of us remain safe.
Prosecutors have limited resource [...]"

This reminds me of the issue with warrants and GPS tracking devices on cars.
Police have argued that attaching a GPS tracker is no different than assigning
a patrol car (or unmarked car) to tail a person. But there's a huge
difference. Up until recently, our expectation was that assigning a tail was
an investment of rather limited resources, thus giving us some assurance that
police would be precluded from tailing anyone but bona fide suspects. With the
proliferation of GPS devices -- the cost of which will most certainly continue
to come down -- the number of people police can track approaches everybody.
That's living in a very different world.

Wait until prosecutors have the computing power to track people's activities
and flag "crimes." The "Mother Teresa" parlor game will be made automatic and
expand to include everyone. That will be a very different world, too.

------
coldcode
The end result if nothing changes is likely that everything we do is a crime;
the only question is whether there is room to incarcerate.

------
stcredzero
_most dangerous power of the prosecutor: that he will pick people he thinks he
should get, rather than pick cases that need to be prosecuted.” Prosecutors
could easily fall prey to the temptation of “picking the man, and then
searching the law books...to pin some offense on him.” In short, prosecutors’
discretion to charge—or not to charge—individuals with crimes is a tremendous
power, amplified by the large number of laws on the books._

The messy state of US law, with many preposterous and outdated laws on the
books, encourages this kind of discretionary enforcement. Even police officers
can often "pick the man, then figure out the crime."

~~~
jlcx
Is this a problem in the US specifically? Has there been some kind of
international comparison on legal "messiness"? Just curious, by the way, and I
can't think up a good search query for that.

~~~
stcredzero
Search for "Blue Laws." We have lots of WTF laws on the books that are clearly
leftovers from the 1800s.

------
dsrguru
InclinedPlane wrote a fantastic post on this exact topic a while back:
[https://news.ycombinator.com/item?id=4753117](https://news.ycombinator.com/item?id=4753117)

------
cottonseed
There was an excellent New Yorker article about how we got here, due process
vs principles:

[http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120...](http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120130crat_atlarge_gopnik?currentPage=all)

------
mjcohen
How soon before the author of this is indicted?

