Tuesday, November 24, 2009

Criminalize Everything?

police smile while arresting man in handcuffs
The New York Times reports today on a number of cases challenging the expanding scope of federal criminal laws. Groups on the political left, like the ACLU, are arguing against vague laws that infringe on individual liberty and they are joined by some of their old enemies from the political right who believe that federal criminal law is too pervasive.

One book cited by the NY Times article argues that "federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all."

Former federal judge and University of Utah professor Paul Cassell is quoted as saying that federal law allows the government to confiscate an entire yacht if a single joint of marijuana is found on it.

State law can be as pervasive and invasive of liberty as federal criminal law. For example, I prosecuted traffic offenses as a prosecutor for Salt Lake City along with a dozen or so other City prosecutors. I had discussions with them about how difficult it is to follow every requirement of the traffic code. One experienced prosecutor said that, as an experiment, she, a lawyer with extensive knowledge of the traffic code, had tried to drive without violating any of the traffic laws, but was completely unsuccessful.

The penalties for violating Utah's traffic laws do not compare to federal prison time. But a police officer can stop a car that violates the traffic code to investigate the traffic offense. Being detained by a police officer is a major intrusion into our personal liberty. Police frequently stop cars for such minor offenses as operating a vehicle without a functioning tail light, and then find a reason to search the vehicle.

The United States Constitution protects our right to be free from "unreasonable searches and seizures." But when every driver can be stopped by the police and eventually searched, are we really secure in our "persons, houses, papers, and effects?" The federal and the Utah legislatures should reconsider the trend toward criminalizing everything.

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