- - Monday, July 8, 2013


The House Judiciary Committee’s new Overcriminalization Task Force recently held its first hearing on the size and scope of a growing problem: There are too many federal laws, they are duplicative and frequently overlap with state crimes, and many fail to include a clear criminal-intent requirement to protect innocent Americans from a potential stint in federal prison.

The conservative Heritage Foundation’s John Malcolm testified before the task force, citing specific instances where vague laws had ensnared unsuspecting American citizens. Anticipating the argument that prosecutors could be trusted to minimize such dangers, Mr. Malcolm — a seasoned former federal prosecutor — eloquently opposed this notion:

“The frequent retort of prosecutors to the overcriminalization problem is that they are very busy people, and that we can ‘trust them’ to decide which cases to prosecute and which to reject when it comes to enforcing vague laws. I know this argument very well because I used to make it myself. Upon reflection, though, I have come to believe that this argument is wrong, not because most prosecutors are untrustworthy, but because it is fundamentally unfair and undermines the very foundations of our legal system.

“Most prosecutors are people of good will, but as is the case in any profession, there are good ones and bad ones. Some, fortunately very few, may be prejudiced against a particular group or individual. Some prosecutors are ambitious and might see some personal advantage in pursuing a questionable prosecution against a big company or an infamous person. There are, after all, many incentives for prosecutors to bring charges, and very few not to bring charges. Prosecutors get public kudos for bringing cases. They rarely get praised for declining to prosecute a case. Some might succumb to pressure from law enforcement officers, who may have spent a lot of time investigating a case, to find some charge to file to justify that effort, even when doing so is unfair and unjust. Some might simply have bad judgment or be mistaken about what a vague law really means.

“[T]he government’s ‘trust us’ argument asks the public to bear the risk that prosecutors might not always do the right thing. This should not be permitted in a system that is premised on being a government of laws and not men.”

This is a compelling argument against entrusting fallible (and sometimes prejudiced or untrustworthy) federal prosecutors with Americans’ personal liberty. Both conservative and liberal members of the Overcriminalization Task Force appeared to agree with Mr. Malcolm. What they might not have realized is that Mr. Malcolm’s argument also demolishes the case for mandatory-minimum sentencing laws.

Mandatory sentencing laws increase the already awesome authority of federal prosecutors by handing them yet more — the power to sentence. Mandatory-minimum sentences are tied to charges, and the prosecutor’s unlimited discretion to bring those charges means that the prosecutor is also picking the sentence an individual will receive. This cuts judges out of the sentencing process completely.

This massive transfer of power might be fine in most cases, since most prosecutors are, as Mr. Malcolm suggests, “people of good will.” But as he notes, not all prosecutors are perfect. There are “bad ones” who “may be prejudiced against a particular individual.” Others are “ambitious and might see some personal advantage in pursuing a questionable prosecution.” Finally, some prosecutors will simply exercise “bad judgment.” When they do, an incredibly unfair sentence can result.

Principled and smart conservatives such as Mr. Malcolm are right that to entrust prosecutors with both charging and sentencing power “asks the public to bear the risk that prosecutors might not always do the right thing.” he said, adding, “This should not be permitted in a system that is premised on being a government of laws, and not men.”

The Constitution’s Framers believed that separation of powers protects liberty, and they imposed institutional checks and balances to prevent the concentration of power.

Eliminating mandatory-minimum sentences would not prevent prosecutors from playing a major role at sentencing. It would only check their power. Prosecutors would still influence sentences in their charging decisions and in their recommendations to the court. Prosecutors would still appeal sentences they find too lenient, and probably (as they do now) win.

Vague federal laws coupled with mandatory-minimum sentences eviscerate any meaningful check on the power of prosecutors, creating a criminal justice system that is anathema to our Founders’ principles. The Overcriminalization Task Force has an opportunity to restore those principles. Repealing mandatory minimums would be a good start.

Julie Stewart is founder and president of Families Against Mandatory Minimums.

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