“Three felonies a day”

Time to update your priors, again … Judge Alex Kozinski has written up a scathing indictment of our criminal justice system in his latest essay Criminal Law 2.0. Judge Kozinski’s thesis is that the criminal justice game is rigged in favor of The Man. Here’s an excerpt from his excellent essay (footnotes omitted):

Professor Tim Wu of Columbia Law School recounted a “darkly humorous game” played by Assistant U.S. Attorneys in the Southern District of New York:

“Someone would name a random celebrity—say, Mother Theresa or John Lennon. It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like ‘false statements’ (a felony, up to five years), ‘obstructing the mails’ (five years), or ‘false pretenses on the high seas’ (also five years). The trick and skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences.”

A big reason prosecutors have so much leverage in plea negotiations is that there are many laws written in vague and sweeping language, inviting prosecutorial adventurism. It is thus difficult for individuals charged with a crime to know how to defend themselves and to gauge the likelihood of being acquitted.

In other words, to quote one of my former students, Freddie Torres: “the house always wins.” Hat tip: Alex Tabarrok.

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