Wednesday, October 6, 2010

Congress Looks to Close the Barn Door -- After the Horse Escapes!

Someone sent me the link to an article in which Congress actually held a hearing on the problem of "overcriminalization," or what Rep. Bobby Scott of Virginia declared:
We must put an end to the notion that we need to prosecute every individual for every perceived offense. We continue to lock up people for offenses that should not even require incarceration.
I include some portions of the article so readers can get a better sense of what is happening:
Abner Schoenwetter, a Miami seafood importer, spent six years in prison, paid tens of thousands of dollars in fines and legal fees and is at risk of losing his home. His crime? Agreeing to purchase lobster tails that federal prosecutors said violated harvest regulations -- in Honduras.

Now Schoenwetter, at age 64, is a convicted felon with an ailing wife, no job, no right to vote and has three years of supervised release ahead of him. But he's also a star witness for congressional efforts aimed at stemming what a growing number of legal experts and lawmakers consider ``overcriminalization'' -- the federal government's penchant for writing new laws to criminalize conduct that could be addressed with fines or other remedies.
I happened to be at a one-day seminar six years ago, with Schoewetter's attorney being one of the speakers, and I can tell you that what I heard that day was outrageous. To make matters worse, the Honduran attorney general wrote a letter declaring that Schoenwetter and his partner had NOT violated Honduran laws, but that did not matter to federal prosecutors who wanted yet another win at all costs. (Furthermore, we see once again a federal jury failing to do its duty and, instead, choosing to destroy a human life because an ambitious federal prosecutor told them to do it.)

The article continues:
Legal experts say there are more than 4,450 federal crimes on the books and as many as 300,000 federal regulations that can be enforced criminally. From 2000 to 2007, Congress created 452 entirely new crimes -- that's more than a crime a week, said Brian Walsh, a senior legal research fellow at The Heritage Foundation who focuses on overcriminalization. ``It used to be a grave statement to say someone was making a `federal case' out of something,'' Walsh said told lawmakers. ``Today, although the penalties are severe and frequently harsh, the underlying conduct punished is often laughable.''
Some of the material here is similar to what Candice E. Jackson and I had in Reason Magazine in 2004 in our article, "Washington's Biggest Crime Problem." In that article, we addressed what apparently some members of Congress only now are starting to realize: that they have created a monster, and federal prosecutors now are able to find that they can charge about anyone they want with any crime of their choosing. Like Levrenty Beria, the infamous head of the Cheka, the secret police for Lenin and Stalin, once declared: "Show me the man, and I will find you the crime."

Unfortunately, it is much too late. Congress, wanting to be "tough on crime," managed to create whole new categories of "crime," turning criminal law away from its roots that went back to the legal traditions we inherited from England, and moving it in a direction in which one did not have to commit a real "crime" in order to be a criminal.

The monster has been devouring innocent people for a long time, and there is no way that Congress can tame it. Should Congress try to do so (and I CANNOT imagine another "tough on crime" Republican Congress being willing to take this kind of a step), federal prosecutors will find creative ways to bring criminal charges against any member of Congress who wishes to roll back this legal tidal wave. Don't kid yourselves. Federal prosecutors literally have NO checks and balances in their line of work.

When the "Public Integrity" unit of the U.S. Department of Justice has liars working for it, and when prosecutors in that unit hide evidence and lie to judges -- and receive no real penalties for such behavior -- then we know that the game is over. I have watched federal prosecutors over the past decade lie, break the law, hide evidence, and engage in malicious prosecutions, yet I have not seen one person who did these things pay any kind of penalty for it.

Thus, the notion that Congress can gain control of a legal system that is out of control is like saying that Congress really is trying to shut that barn door -- now that the horse is out. It is not going to happen, and it cannot happen.

So-called Progressives promised that once we had "experts" in place in the government and they were given unlimited power, they would do good, since everyone knows that "experts" are pure of heart and have only the public welfare in mind. Well, we have Rule of Experts today, and our prisons are bursting with the world's largest prison population, our economy is in ruins (thanks to the "experts" at the Federal Reserve System), and there seems to be no end in sight to the misery these people are inflicting upon others.

Abner Schoenwetter was a decent, law-abiding citizen, and then a federal prosecutor decided to destroy the man and his family. Why? Because he could do it, and he knew that no one would stand in his way. Not even Congress.


Michael McNutt said...

Not just federal but all courts and police arresting folks for crimes that not only they didn't commit but didn't even happen. Again I ask, What can we do? When our elected officials are powerless it doesn't matter who is elected. How do we bring our justice system back in the control of the people? MARCH ON THE COURTHOUSES WITH PITCHFORKS AND TORCHES?

jp said...

^ About all one can do is learn and practice -> Nullification...

Trish said...

Absolute insanity!!!!

Anonymous said...

Not to take anything away from another great post, but I just went back & read many of the trolls postings. I found it especially odd how this person has decided to begin to attack Kerwyn. This person began posting on this site about 6 weeks or so back. I can go back to the original with a few hours of work, but I remember their first post.

Anyway, I have a very strong opinion on who this person is. Without naming the person, I want Kerwyn to think back on a comment thread about a certain person's credentials around 3 months or so ago. I think this person has decided to come on in & open HER mouth without anything to divulge. Hmmmm....sounds curiously like her place in the Tonya Craft trial.

Just my opinion, but after going back & reading her comments, then attacking Kerwyn & certain things she has said, it just sounds very familiar.

Doc Ellis 124 said...

Shared as 'Bill Anderson on Congress trying to close barn door after releasing horse in open door barn'.

Thank you for writing this.

KC Sprayberry said...

The changes to this system, unfortunately, have to start at the federal level. But our elected reps aren't doing anything more than lip service. If they were truly interested in stopping the malicious prosecutions and putting innocent people in prison, these men and women would fight tooth and nail to get rid of CAPTA and replace it with a more common sense system encouraging prosecution of real child molesters. To date, the individuals charges with overseeing actions against individuals accused of these types of crimes seem to go after day care centers, parents, or children themselves. Get rid of the unregulated federal money. Make the local prosecutors actually prove their case using respected individuals in the field - individuals who take their training and findings seriously instead of 'Holiday Inn Express' trained prosecution lapdogs - and we might actually see the real child molesters inhabiting the prisons. Of course, none of our elected officials would do anything that might "endanger a child" would they? Or don't they realize just how much endangerment they've already caused by leaving this bad law in place?

Rob said...

I think one good reform would be to remove the power to prosecute crimes from the government. This would entail eliminating all public prosecutors' offices.

Kerwyn said...

I just had a phone call from an acquaintance.

The story is as follows:

Her boyfriend who had some brushes with the local law for fairly minor stuff (drinking and a fight in a bar)was due in court where the ADA was going to drop the charges since he was on probation already for a previous drinking issue. He had spent 2 years clean and sober, cleaned his life up and had been employed since his initial arrest.

Unfortunately for him, there was a warrant for his arrest in another county for an unpaid speeding ticket and he had been arrested and incarcerated in the other county (no money for bond or a lawyer).

When his local court date came, the ADA who had been informed he was being held in another county jail, shrugged and had the judge issue another warrant for his arrest based on failure to appear (he had no lawyer). Saying it was his responsibility to get the other county to transport him.

The other county stated first that he had not told him (he had paperwork to prove he had) and then told him no, the local county has to transport him and he has to file a writ of habeas corpus (confused here) in order to force the local county to transport him to a court hearing which has not been rescheduled due to the warrant and can't be rescheduled until the warrant is satisfied which he can't do since he is in jail in another county (takes a deep breath). AND the other county is now (after the speeding ticket warrant is satisfied) UNTIL the local county comes and gets him which they won't do unless he satisfies the failure to appear which he can't because uh he is in jail in another county.


So basically this guy has one county blaming the other county and both of them slapping him with warrants for failures to appear even tho he is in jail (and can't) all the while blaming him.

William L. Anderson said...

Yep. Our "public servants" at work.

liberranter said...

On a related note, has anyone seen this?

or this?

The message: If you're poor and find yourself on the wrong side of the law as a criminal defendant, you're going to get charged out the a** for "free" legal representation (the quality of which, to be sure, is usually equal to what you pay for it), effectively denying you your right to counsel. Also, if you're a poor, misguided, idealistic attorney who chooses, for whatever reason, to represent these same indigent folk on the taxpayers' dime, you could find yourself out of work. After all, the DA's office, that paragon of righteousness and justice, needs all the scarce dough it can get its filthy hands on in order to keep railroading these same poor folk into the prison-industrial complex.

But of course, what else would we have expected in the "land of the free?"

justiceseeker51 said...

Here is a site to go to KC Sprayberry and all, about the CAPTA vote.

justiceseeker51 said...

Well, it cut some of it off. Sorry!

mack520 said...

One of the reasons this problem seems so utterly intractable is that many in the criminal justice community are just not capable of rational thought. I offer the lovely Mary Keenan Lacy, former Boulder Co. DA as an example. Ms. Lacy is now in private practice as incredibly, a defense attorney. She was recently quoted in the Daily Camera explaining her new career- words to the effect of "Now my job is to get these people the best deal I can, so they can go on with their lives". Not a word about mount the best defense, or demonstrate their innocence- just "Get them the best deal". Even as a defense attorney, she knows full well everyone should be punished.

KC Sprayberry said...

justiceseeker51 - am I reading this correctly when I think CAPTA expired in 2008? And the feds are just now getting around to amending an expired bill that is the basis for all these child molestation cases? If so, then there are a lot of people in prison with a tailor made appeal. Of course, that's my simple, logical mind thinking here. Thinking along the lines of all these lawmakers and prosecutors simply trying to protect children, they were working on something so in the meantime, they could go ahead with their persecutions without benefit of CAPTA because it would never really go away. And of course, they never mentioned such lapse to the uneducated masses because we might actually think a bad law had just disappeared because of legislative inaction.

justiceseeker51 said...

KC, That's the way I was looking at it.
Pitiful huh?