Ham Sandwich Nation: Due Process When Everything Is a Crime

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

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.)

I'd go further. The jury must convict on all presented charges or none. Throwing 900 charges at someone, as the article says, is a way to force a plea bargain from someone who may well be innocent. (And removing a charge after failing the plea bargain tactic, but before court can't be allowed either.)

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 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.

This is just trying to treat the symptom: the issue is not that we try multiple things at once, its that that becomes a real option when we have too many laws. As mentioned below, I think no one has a real issue with someone being tried for 4 murders and 1 rape. Seems totally reasonable to me that if they only find him guilty of 3 of those murders justice was still served. If prosecutors were only operating under a much smaller and more well defined and understood set of laws, they simply wouldn't be able to over-prosecute. Its harder easier to find any given person guilty given 10 laws vs given 1 law.

Just look at the situation with traffic violations: most cops will tell you that if they want to cite you for something, they can find something to cite you on. The solution is not to come up with clever tricks where they lose points if they cite you for too many of these, or citation 1 disqualifies citation 2 or whatever, its to just limit the number of traffic laws so that police are only capable of acting on real issues.

I posted these here just a few days ago:

- Accused can choose to take the plea but continue the trial. If he loses he just serves the plea.

- A conviction on a crime caps the max penalty for that crime: this means if a rich daddy's boy gets away with 60 days probation for a DUI, any future DUI conviction cannot be bigger than 60 days probation.

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.

> It is kind of shocking to me that the state isn't liable for defendants' legal fees in the face of an acquittal.

The state is, even if you're found guilty. You just need to be in a position where you couldn't afford an attorney yourself.

> 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.

That's...not really true. First, plaintiffs aren't generally liable for respondents costs in a civil suit if the plaintiff loses, so the idea that the fact that prosecuting authorities aren't responsible for defendants costs whenever the defendant is acquitted in a criminal case is unexpected given the civil parallel is bizarre.

Second, while it is possible to sue someone for abusing the system in a civil case (but just because they lost alone) and be awarded legal costs, the prevention of such abuse in the criminal system is generally provided by the early parts of the criminal process (indictment or preliminary hearing) where the the prosecution is required to demonstrate probable cause before being allowed to even proceed to trial at all.

I suppose you could make a case that a prosecution that fails to pass a preliminary hearing out to bear responsibility for the defendant's reasonable legal costs incurred to that point, and that that would be parallel to the kind of protections that exist in the civil system. You might even go farther and extend this by requiring a "preliminary hearing" reviewing the indictment even in cases where an indictment is required (where the defense would have assistance of counsel at the preliminary hearing), since in practice indictment has generally become a weaker protection than a preliminary hearing, even though its intended as a stronger protection against abuse (hence, why it is required for federal felonies.)

    > 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.

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.

The way the laws are these days, everybody is. Of course, so are the ones not dragged in.

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

"Could courts even handle a system without plea bargains?"

In a system without plea bargains, the prosecutors wouldn't be able to prosecute as many people, or as many charges. They wouldn't have the resources to go after nearly as many people. The courts would thus have less cases to hear.

Even the suggested system where the prosecution pays the legal costs of the fraction of charges they don't meet would be limiting to prosecutions. I imagine even that would be very difficult to convince legislators to agree to, as it increases costs and hence would reduce the amount of criminals that can be 'put away'.

I find the whole plea bargaining system to be obscene. Prosecutors are basically blackmailing the person into accepting a lesser charge, even if they are innocent of any charge. I remember the first few times I saw this type of thing on tv shows, I thought it was some kind of corrupt dealing: 'surely this is illegal, making a shady private deal between the suspect and the lawyer'.

> 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.

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.

The indictment rate of grand jury is about 98-99% (wikipedia). As far as I know, only prosecution presents its case, defense is not.

Wiki link: http://en.wikipedia.org/wiki/Grand_juries_in_the_United_Stat...

Was that a state or federal court?

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.

Not to diminish your experience, but I read this piece recently from Ken White at Popehat, that sheds a rather different light on it.

His phrasing may not be to everybody's taste, but he does have a decent amount of relevant experience.

Rather than tread over the ground well-described by my colleagues in the criminal defense bar, today I'd like to describe something else for you: what a federal grand jury proceeding looks like. From 1995 through 2000, I presented cases of varying complexity to federal grand juries as a federal prosecutor in Los Angeles. That experience did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. The notion that the Supreme Court relies upon — that the grand jury has a "historical role of protecting individuals from unjust persecution" — is not a polite fiction. A polite fiction would have some grounding in reality. It's an offensive fiction, an impudent fiction, a fiction that slaps you across the face and calls your mother a dirty bitch.

http://www.popehat.com/2014/02/27/the-kaley-forfeiture-decis...

I want out as soon as I can. High cost of living is killing me, but I work at a family business and they have no interest out of state.

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.

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.

They had to do something when the civil rights movement took away their ability to otherwise punish the minority populations at will.

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.

Definitely. John Gilmore also mentioned this book on a stanford forum.

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

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.