Ham Sandwich Nation: Due Process When Everything Is a Crime

http://columbialawreview.org/ham-sandwich-nation_reynolds/

by jervisfm • 12 years ago

230 107 12 years ago

coldcode• 12 years ago

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.

tootie4• 12 years ago

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.

watwut• 12 years ago

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...

tootie4• 12 years ago

That'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• 12 years ago

Was that a state or federal court?

tootie4• 12 years ago

State.

clamprecht• 12 years ago

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.

thaumasiotes2• 12 years ago

From my memory, having read an article by someone who knew:

The prosecutor can try again later, but must mention previous failed attempts to indict.

tootie4• 12 years ago

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.

lotsofmangos3• 12 years ago

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...

Brian-Puccio3• 12 years ago

Sounds 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• 12 years ago

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• 12 years ago

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.

midas0072• 12 years ago

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

kingkawn• 12 years ago

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

lotsofmangos3• 12 years ago

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• 12 years 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.

lotsofmangos3• 12 years ago

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

maxcan• 12 years ago

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• 12 years ago

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.

DerpDerpDerp3• 12 years ago

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.

Brian-Puccio3• 12 years ago

Unfortunately DAs are rather underpaid ...

What's worse, that DAss offices are lacking in resources or that public defenders' offices are lacking in resources?

http://www.nytimes.com/2013/08/24/us/public-defenders-are-ti...

http://www.americanbar.org/news/abanews/aba-news-archives/20...

Then there's all the underfunded PDs' offices for states/counties/cities that just don't have the resources to defend their clients.

Maybe a better system would involve both the prosecuting and defending attorneys be both paid for by the state from a pool of volunteers and both given the same compensation for their time?

Brian-Puccio3• 12 years ago

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.

the_watcher• 12 years ago

That's different than what the parent comment is talking about though. The parent is pointing out the absurdity of the state not having to pay the fees of someone acquitted. I'm assuming they even believe that if Bill Gates was wrongfully prosecuted and acquitted, the state should be liable for those costs. I agree, as it would act as a deterrent prosecution (which, given that the entire settlement system of civil procedure is based in the assumption that reducing the burden on the courts of a full docket - deterring riskier less certain prosecutions works toward the same goal).

dragonwriter2• 12 years ago

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.)

binarytrees• 12 years ago

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• 12 years ago

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• 12 years ago

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.

evan_• 12 years ago

This 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...

bostik• 12 years ago

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.

lessnonymous• 12 years ago

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.)

gnoway2• 12 years ago

I 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.

gamblor9567• 12 years ago

That is an extremely dumb idea. And I say that from the POV as someone who used to represent criminal defendants.

A person can be guilty of multiple crimes for the same act. Under the basic principles of criminal constitutional law, all crimes for the same act must be charged at the same time. Your solution would mean that someone guilty of rape, murder, and larceny would go completely free if they were found guilty of the two more serious crimes (rape and murder) but not guilty (or no verdict) for the least serious crime.

gamblor9567• 12 years ago

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.

graeme• 12 years ago

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.

coldtea2• 12 years ago

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.

Neither does it change the fact that preliminary hearings do NOT solve the problem he describes.

Spooky23• 12 years ago

I agree and disagree with you.

What you describe is clear and straightforward for "traditional" crimes, but when your talking about highly abstract/technical or transactional crimes, I don't think that any non-millionaire could afford representation capable of dealing with multiple counts of honest services fraud, very technical violations of something like a firearms law.

I also think that in the federal space, things like lying to a federal agent should not be crimes -- look at the Martha Stewart case. We should be convicting people of crimes they commit, not for statements made during an investigation.

oijaf888• 12 years ago

Do preliminary hearings tend to happen before plea bargains are offered? So if you are faced with 10 charges adding up to 500 years on jail, those have already been vetted by the court as having sufficient evidence and aren't just a scare tactic to get you to waive the trial?

tolmasky• 12 years ago

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.

einhverfr5• 12 years ago

I say we go with an even more radical solution, based on the chief protection against that harm in medieval Iceland.

Let's require that the Speaker of the House recite from memory 1/4 of the federal code (including regulatory laws) every year, so that over the course of 4 years, the entire code of laws gets recited. Anything accidently omitted gets stricken from the law books.

Congress should open with this. And if one human cannot be expected to know the law, then nobody else should be either.

vpeters25• 12 years ago

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.

mjcohen• 12 years ago

How soon before the author of this is indicted?

higherpurpose• 12 years ago

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

http://online.wsj.com/news/articles/SB1000142405274870447150...

midas0072• 12 years ago

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

jlcx2• 12 years ago

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

stcredzero2• 12 years ago

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."

jlcx2• 12 years ago

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.

stcredzero2• 12 years ago

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

alexeisadeski3• 12 years ago

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• 12 years ago

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.

judk2• 12 years ago

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

What happened?

arh68• 12 years ago

Ah, 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• 12 years ago

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

qwerta• 12 years ago

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.

Einstalbert• 12 years ago

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.

einhverfr5• 12 years ago

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.

techsupporter2• 12 years 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

techsupporter2• 12 years ago

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.)

jessaustin• 12 years ago

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.

rossjudson2• 12 years ago

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.

mason2402• 12 years ago

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?

yuubi• 12 years ago

Chasing links from footnote 1 of the paper, one finds that the statute is supposed to prohibit possession, so whether waving it around on air counts as "brandishing" isn't obviously relevant.

http://www.washingtonpost.com/local/crime/nbcs-gregory-wont-...

cottonseed• 12 years ago

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...

netcan2• 12 years ago

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?

kristianp• 12 years 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'.

einhverfr5• 12 years 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.

netcan2• 12 years ago

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.

dsrguru• 12 years ago

InclinedPlane wrote a fantastic post on this exact topic a while back: https://news.ycombinator.com/item?id=4753117

vaadu• 12 years 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• 12 years ago

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

mariodiana• 12 years ago

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.

Ham Sandwich Nation: Due Process When Everything Is a Crime

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