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America Desperately Needs to Fix Its Overcriminalization Problem
National Review ^ | 04/09/2015 | George Will

Posted on 04/09/2015 7:52:36 AM PDT by SeekAndFind

What began as a trickle has become a stream that could become a cleansing torrent. Criticisms of the overcriminalization of American life might catalyze an appreciation of the toll the administrative state is taking on the criminal-justice system, and liberty generally.

In 2007, professor Tim Wu of Columbia Law School recounted a game played by some prosecutors. One would name a famous person — “say, Mother Teresa or John Lennon” — and other prosecutors would try to imagine “a plausible crime for which to indict him or her,” usually a felony plucked from “the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield.” Did the person make “false pretenses on the high seas”? Is he guilty of “injuring a mailbag”?

In 2009, Harvey Silverglate’s book Three Felonies a Day demonstrated how almost any American could be unwittingly guilty of various crimes between breakfast and bedtime. Silverglate, a defense lawyer and civil libertarian, demonstrated the dangers posed by the intersection of prosecutorial ingenuity with the expansion of the regulatory state.

In 2013, Glenn Harlan Reynolds, University of Tennessee law professor and creator of Instapundit, published in The Columbia Law Review “Ham Sandwich Nation: Due Process When Everything is a Crime.” Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the proliferation of criminal statutes and regulations backed by criminal penalties, what becomes of the mens rea principle that people deserve criminal punishment only if they engage in conduct that is inherently wrong or that they know to be illegal?

Now comes “Rethinking Presumed Knowledge of the Law in the Regulatory Age” (Tennessee Law Review) by Michael Cottone, a federal judicial clerk.

(Excerpt) Read more at nationalreview.com ...


TOPICS: Crime/Corruption; Culture/Society; Government; News/Current Events
KEYWORDS: donutwatch; overcriminalization
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To: SeekAndFind

And yet we’re eager viewers of Law & Order-type programs with heroic prosecutors finding ever-more clever ways to “stretch” the law to charge “perps.”


41 posted on 04/09/2015 11:14:41 AM PDT by Demiurge2 (Define your terms!)
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To: Pearls Before Swine
So, minor offenses (if indeed they should be offenses at all) are overcharged, and major crimes are undercharged.

A few months ago I read where for centuries there were only seven types of felonies and that was based on old English law dating from way back. We now have so many felonies, classified in different classes that many once-minor misdemeanors have become felonies.

I really believe this is due to our politicians wanting to ensure they have all of the citizens turned into convicts and placed under their boot and with so many felonies those once-citizens may not vote or own firearms.

I wish I could remember where I read that article and maybe it was from a post here on FR, but It was right after I had one of my knees replaced and I was on some pretty strong pain killers. I am now too busy at work and lazy at home to try to find it but it was an interesting read and something we should try to revert back.

42 posted on 04/09/2015 12:45:21 PM PDT by OldMissileer (Atlas, Titan, Minuteman, PK. Winners of the Cold War)
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To: aquila48

Add to your list the Repeal of the 17th Amendment. That would make it much harder for either party to pass frivolous laws, by preventing an election of a super-majority majority Senate.


43 posted on 04/09/2015 2:20:40 PM PDT by fwdude (The last time the GOP ran an "extremist," Reagan won 44 states.)
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To: fwdude
When you have full-time legislatures that are essentially “law factories,” what else should we expect?

Good point! The term "lawmaker" drives me nuts.

44 posted on 04/09/2015 4:14:25 PM PDT by Forgotten Amendments (Peace On Earth! Purity of Essence! McCain/Ripper 2016)
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To: Georgia Girl 2
When I think back to my teen and early adult years and then compare them to now it seems like almost everything is now agains’t the law.

I've been going through a sort of late-midlife thing by reading a lot of books about my sports and music heroes from the '50s-'70s. Here and there you see little things that were normal back then that would get the SWAT team called out now. The frog has definitely boiled.

45 posted on 04/09/2015 4:20:16 PM PDT by Forgotten Amendments (Peace On Earth! Purity of Essence! McCain/Ripper 2016)
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To: Pearls Before Swine

Look up the concept of anarcho-tyranny. Samuel Francis identified the issues here over 20 years ago.


46 posted on 04/09/2015 4:49:29 PM PDT by FreedomPoster (Islam delenda est)
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To: Forgotten Amendments
The term "lawmaker" drives me nuts.

Yeah, no kidding. It's like they can't do otherwise, even if it's horrific law that they 'make.'

47 posted on 04/09/2015 5:32:40 PM PDT by fwdude (The last time the GOP ran an "extremist," Reagan won 44 states.)
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To: Forgotten Amendments

Yes we now live in a police state. We have had a soft coup and the totalitarian dictatorship has been installed. I have grave doubts the ballot box can fix things.


48 posted on 04/09/2015 6:08:04 PM PDT by Georgia Girl 2 (The only purpose o f a pistol is to fight your way back to the rifle you should never have dropped.)
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To: zeugma

Why????????????????

.


49 posted on 04/09/2015 6:12:27 PM PDT by Mears (To learn who rules over you, simply find out who you are not allowed to criticize."Voltaire))
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To: SeekAndFind

I had two friends shot dead here in Atlanta a few weeks ago trying to walk back to their car in a bar district. There is a police substation 15 steps away from the scene of the double homicide. No one around to help.

However, that same night there were likely 20+ DUI’s issued to patrons leaving those same clubs. Pulled over by police officers lying in wait around the corner, securing thousands in fines for the city. Thanks Moms.


50 posted on 04/09/2015 6:30:35 PM PDT by The Toll
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To: SeekAndFind

There is both under and over criminalization rampant today.

Under criminalization is the phenomenon where liberals want to forgive and forget any transgression - serious or not - by a beloved and protected class of perp.

Over criminalization is where the administrative rules are crossed by unwitting peoples pursuing their own lives.

(sarc) The only solution is to shoot the politicians and start over! (/sarc)


51 posted on 04/09/2015 6:44:37 PM PDT by MortMan (All those in favor of gun control raise both hands!)
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To: Half Vast Conspiracy
What? I put my pills is two keepers each week.

Then you're a potential felon. Isn't big government grand?

52 posted on 04/09/2015 7:53:58 PM PDT by zeugma ( The Clintons Could Find a Loophole in a Stop Sign)
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To: Mears
Why????????????????

You cannot store prescription medications in anything other than the labeled bottle they are dispensed in. Don't ask me why. It's "the law".  And as anyone here on this site that worships The Law will tell you, it doesn't matter if the law is right or wrong, because it's The Law, and if some FedGov whackjob with a gun decides to prosecute you over it, they bloody well can because there is a big difference between these cretins who work for the government (at just about any level) and you, and that's if you resist, they have no problem whatsoever with killing you for disobeying The Law.

Some even on this forum will cheer them on as they do so.

53 posted on 04/09/2015 8:34:48 PM PDT by zeugma ( The Clintons Could Find a Loophole in a Stop Sign)
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To: The Toll
Thanks Moms.

This never gets old:

http://drunkard.com/issues/07_02/madd_dog.htm

54 posted on 04/09/2015 10:45:01 PM PDT by Forgotten Amendments (Peace On Earth! Purity of Essence! McCain/Ripper 2016)
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To: zeugma

“You cannot store prescription medications in anything other than the labeled bottle they are dispensed in. Don’t ask me why. It’s “the law”

As an 82 year old grandmother I always felt that I led a quiet and honorable life.

I now find that because of the way I store medications I am a lawbreaker and living on the edge.

Neat !!!!!!!!!!!!!!!!!!!!!!!!!!!!!

.


55 posted on 04/10/2015 1:01:10 PM PDT by Mears (To learn who rules over you, simply find out who you are not allowed to criticize."Voltaire))
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To: Mears
I now find that because of the way I store medications I am a lawbreaker and living on the edge.

Kinda warms you up a bit doesn't it?

Welcome to the 21st century America, where if you're breathing, you're breaking some kind of law.

56 posted on 04/10/2015 1:27:10 PM PDT by zeugma ( The Clintons Could Find a Loophole in a Stop Sign)
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