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Ham Sandwich Nation: Due Process When Everything Is a Crime
- coldcode 13y agoThe end result if nothing changes is likely that everything we do is a crime; the only question is whether there is room to incarcerate.
- tootie 13y agoIn 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.
- watwut 13y agoThe 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_States http://en.wikipedia.org/wiki/Grand_juries_in_the_United_Stat...
- tootie 13y agoThat's correct, but it's misleading. The grand jury is a sanity check. Prosecutors won't bring a case if they don't have enough evidence for an indictment.
- agwa 13y agoWas that a state or federal court?
- tootie 13y agoState.
- clamprecht 13y agoIf 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.
- thaumasiotes 13y agoFrom my memory, having read an article by someone who knew: The prosecutor can try again later, but must mention previous failed attempts to indict.
- tootie 13y agoThat'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.
- lotsofmangos 13y agoNot 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-decision-what-it-looks-like-when-the-feds-make-their-ham-sandwich/ http://www.popehat.com/2014/02/27/the-kaley-forfeiture-decis...
- Brian-Puccio 13y agoSounds about right given my experience serving for a few months every Wednesday in Brooklyn, NY. Nearly every case was a drug charge involving someone caught at JFK/LGA, FWIW, too.
- Zigurd 13y agoThe 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 13y agoThat 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 13y agoOne encourages the other. But yes, it's "throw 'em away forever."
- kingkawn 13y agoThey had to do something when the civil rights movement took away their ability to otherwise punish the minority populations at will.
- lotsofmangos 13y agoIf 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 13y ago> 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 13y agoIf they made missing the point an Olympic sport, you would get lost on your way to the podium to collect the gold medal.
- deleted 13y ago[deleted]
- maxcan 13y agoIt 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 13y agoThe 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 13y agoWhy 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 13y agoI 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 13y agoIt would also ramp up the already absurd focus on quick, cheap plea bargains.
- DerpDerpDerp 13y ago
- binarytrees 13y agoIt'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 13y agoIt'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 13y agoThat'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 13y agoI 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.
- evan_ 13y agoThis isn't the whole story, but the real story is only slightly less frightening: http://www.foxnews.com/us/2013/12/18/pa-town-latest-to-force-drivers-over-and-ask-for-cheek-swabs-for-federal-study/ http://www.foxnews.com/us/2013/12/18/pa-town-latest-to-force...
- bostik 13y agoIn 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.
- deleted 13y ago[deleted]
- lessnonymous 13y agoI'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.)
- gnoway 13y agoI was just thinking about this. Why do we allow multiple charges per trial? What would happen if we only allowed one charge per trial, and it was a prosecutor's job to determine (along with existing duties) which one of the possible charges would be tried? Double jeopardy would be prevented by requiring submission to the court of all considered charges; attempting to bring a new charge for an already-adjudicated matter would be handled like a failure to disclose exculpatory evidence is today - the charge would be thrown out and the prosecutor would be reprimanded however that happens today.
- dragonwriter 13y ago> Why do we allow multiple charges per trial? Because it saves the state (and, hence, the public) -- both the court and the prosecution -- witnesses, and the defendant time, and money and reaches finality sooner to consider related charges in a single proceeding rather than serial proceedings. That's why we actually go further than allowing multiple charges per trial, but require, in many circumstances, related charges to be prosecuted in the same trial or not at all. And, also, why we do the same thing in the civil system (though in that case, you have to consider another party -- the potential private plaintiff -- who has the same savings, since the state is no longer paying both the court and the prosecution.)
- mjcohen 13y agoHow soon before the author of this is indicted?
- deleted 13y ago[deleted]
- higherpurpose 13y agoThis goes hand in hand with the "3 felonies a day" Americans are committing: http://online.wsj.com/news/articles/SB10001424052748704471504574438900830760842 http://online.wsj.com/news/articles/SB1000142405274870447150...
- stcredzero 13y agomost 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 13y agoIs 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.
- deleted 13y ago[deleted]
- stcredzero 13y agoSearch for "Blue Laws." We have lots of WTF laws on the books that are clearly leftovers from the 1800s.
- alexeisadeski3 13y agoMany 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 13y agoI 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 13y agoWe used to have Perry Mason and Matlock, where the defense attorneys were the heroes of the show. What happened?
- elliotz 13y agoEven law enforcement characters were upright: http://www.youtube.com/watch?v=0wL9Li0f1Po http://www.youtube.com/watch?v=0wL9Li0f1Po
- arh68 13y agoAh, yes. The TV Cop. They're never wrong, never excessively violent, never need permission to "do their job", work happily with any TLA, have affairs with coworkers, glamorize the dirty cop, ... I don't think I've ever seen a routine traffic stop on TV. Maybe it's not TV-worthy. But if a five-year-old asks me, "What do cops do?", which version do I give them?
- noonespecial 13y ago
- qwerta 13y agoDue 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.
- Einstalbert 13y agoI 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.
- einhverfr 13y agoIt 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.
- techsupporter 13y ago"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 13y agoNow 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.)
- jessaustin 13y agoI'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 13y agoExactly. 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 13y agoSo 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 13y agoOf 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 13y agoWhy would the public setting, or even context matter? If you are only "displaying" and not "brandishing," you'll be fine.
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- cottonseed 13y agoThere was an excellent New Yorker article about how we got here, due process vs principles: http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120130crat_atlarge_gopnik?currentPage=all http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120...
- netcan 13y agoThere 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?
- kristianp 13y ago"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'.
- einhverfr 13y ago> 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.
- deleted 13y ago[deleted]
- dsrguru 13y agoInclinedPlane 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
- vaadu 13y ago"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 13y agoI generally shy away from endorsing things from Atlas Shrugged, but that rather hits the nail on the head.
- mariodiana 13y agoFrom 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.