Roger Roots on The Federal Rules of Criminal Procedure

Roger Roots, who has both a law degree and a Ph.D., has written what I believe to be one of the most insightful and important articles on federal criminal law that I have read in a long time. The article, which appears on Lew Rockwell's site (January 4), lays out just how federal authorities stack the deck -- and call it law.

I recently obtained the latest edition of West’s Criminal Code and Rules, the book containing the rules you need to know if you are ever accused of a federal criminal offense. The book is updated every year, and each new edition supersedes the prior edition. It gets worse every year.

The West’s edition now runs to more than 1600 pages, with abridgments and supplements. In addition to the Rules of Criminal Procedure, the book contains selected federal criminal statutes, the Federal Rules of Evidence, the Federal Rules of Appellate Procedure, and the Rules of the Supreme Court of the United States. On virtually every page are mechanisms to hurt, humiliate, control and enslave people to the government’s will – all presented within a framework of procedural rules.

In theory, these rules provide an accused with avenues to defend himself. But one can judge a scheme of procedural rules by its fruits, and the codification, growth and expansion of the Federal Rules of Procedure (of which most state procedural codes are virtual copies), have produced the world’s highest incarceration rate – and probably the highest incarceration rate ever registered in any society in human history. Even more significantly, the Federal Criminal Code and its procedural rules and guidelines have almost eliminated criminal trials in many jurisdictions, because most defendants are unable to defend themselves effectively under the rules and simply plead guilty. Such is the lopsided nature of the Federal Rules that they produce untold mountains of printed accusations and claims against individual Americans, while facilitating no more than a few sentences (generally at sentencing hearings) in rebuttal in most cases.

Footnotes are found on virtually every page of the Federal Rules, tracing dates of amendments and the steady progression of punishments over time. In general, Congress has ratcheted up sentences, expanded the limitation periods in statutes of limitations, expanded rewards for those who cooperate with the government, and limited or eliminated avenues for people to challenge government accusations and court judgments. One is hard pressed to find crimes described in the book as misdemeanors, even if they were misdemeanors long ago. Today, most federal crimes are felonies, and conviction brings more or less automatic prison time.

He continues:

The book seems to provide dozens of separate laws exposing unwary Americans to federal prison for simply filling out paperwork wrong. (Note that these provisions are almost never applied to people in government, who regularly fill out paperwork incorrectly.) There are provisions subjecting Americans to life in prison for cocaine possession. There are open-ended provisions which may (or may not) criminalize pouring a cup of coffee on the ground (and thus violating the Clean Water Act) or accidentally catching certain breeds of fish from the oceans. It remains only for a savvy prosecutor to fill in the blanks and add to the list of crimes that Congress may (or may not) have created.

Few people are aware that the Federal Rules (not just of criminal procedure but of civil procedure, appellate procedure, bankruptcy procedure and Supreme Court procedure) are riddled with provisions that grant more time to the government to file and respond to pleadings and briefs, greater privileges of appearance, and greater ease of prosecuting and defending litigation than individuals in the private sector. The governing advisory committees that produce these rules of procedure have offered no explanation for these filing requirement disparities.

In other words, what he describes is a stacked deck masquerading as law. This has been going on for some time, but it now is getting worse. Unfortunately, most Americans don't know -- and don't care -- about what is going on.

This is partly due to the fact that Americans for years have been told that the law favors criminals and is not tough enough to deal with wrongdoers. Writes Roots:

When neoconservatives gripe that federal courts coddle defendants (or would coddle "terrorists"), they are depicting a fictional court system that exists only in their imaginations. In practice, the federal courts overwhelmingly favor the government, and the rules of procedure are loaded with tricks and traps for the poor and the unwary. Anyone who faces the federal government in court knows that these "protections" are elusive, far-fetched, and in some cases illusionary.

Most so-called defense lawyers shiver in fear at the thought of trying to actually "defend" a client from a federal prosecution. Most begin their "defense" by seeking a plea bargain.

Roots also presents this article from New York Magazine, which goes into detail about why criminal defense lawyers are leaving the field, as it is too discouraging for anyone with a conscience. Roots ends with this warning:

What makes the Federal Criminal Code truly despicable is its disguise as a code of fair and equal procedural protections. Indeed, this deception makes West’s Federal Criminal Code and Rules worthy of inclusion among other infamously cruel books of human history. It deserves a place on the shelves next to the Communist Manifesto, Mein Kampf, and Keynes’ General Theory of Employment, Interest, and Money. The Federal Criminal Code documents the advancement of coordinated, systematic scheme of state tyrannical control – with a procedural overlay.