Here is an excellent article by Lucian Dervan, law professor – wait, wait – keep reading- he’s written an impressive article – and even better it’s free, about the overcriminalization we face as Americans.
The problem is that prosecutors have so much leverage that they can virtually force even innocent, or at least questionably guilty, defendants to plead guilty without ever testing ever expansive legal theories with a trial by jury, thereby ensnaring those who never even intended to do a crime.
This is especially true in white collar crime, cases involving fraud, allegations of theft or misrepresentation by individuals or corporations which a few years ago would have been subject to civil court jurisdiction and legal suits rather than marked as criminal.
Here’s an example of the absurdity of over-ciminalization involving a client I represented in Clearwater, Pinellas County, Florida who was more or less charged by Microsoft with copyright infringement. My investigation revealed that Microsoft paid for local law enforcement personnel to fly all over the country for special Microsoft ‘seminars’ for law enforcement to learn about Microsoft allegations of potential criminal misconduct. Shouldn’t law enforcement always be unbiased? Shouldn’t civil disputes over copyright infringement be handled by civil courts not criminal courts? The prosecutor dropped the charges a week before the trial was to begin – yet the mere allegations, the costs of his defense and the destruction of my client’s life due to his arrest can not be given back to him.
If there was no plea bargaining, if every case went to trial, prosecutors would have to defend overly-broad laws, new novel legal theories as well as tenuous and technical charges in open court which would lead them to make wiser filing decisions in the first place to make fair decisions based on whether justice is best served by bringing the prosecution at all with the facts at hand.
Here’s a link to Professor Dervan’s Over-criminalization article from The Journal of Law, Economics and Policy:
Overcriminalization 2.0: The Symbiotic Relationship
Between Plea Bargaining and Overcriminalization by Lucian Dervan :: SSRN
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Is Congress eroding the criminal intent requirements:“Overcriminalization” describes the trend in America – and particularly in Congress – to use the criminal law to “solve” every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives. Criminal law is supposed to be used to redress only that conduct which society thinks deserving of the greatest punishment and moral sanction.
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