Toward a government of men...

In response to last weekend’s Wall Street Journal article As Criminal Laws Proliferate, More Ensnared, a law professor writes:

...You suggest that it is "increasingly easy for Americans to end up on the wrong side” of a "balloon[ing]” body of federal criminal law.  What you fail to discuss is the prosecutorial discretion imbedded in our criminal justice system.  Not every violation of criminal law brought to the attention of law enforcement authorities results in an indictment...  I suspect that in each of the cases [cited in the article] the prosecutors had reasons beyond the surface elements of the crimes... for commencing the particular prosecution.  I also suspect that in each of their jurisdictions many more instances of similar conduct were resolved civilly or not pursued at all.

The real question, in my view, isn’t wheher Congress has criminalized innocent behaviour, but whether prosecutors are exercising their discretion properly...

Prof. R. Michael Cassidy
Boston College Law School
Newton, Mass.

Prof. Cassidy writes as if the "many more instances” being "not pursued” is a good thing.  He’s wrong.  Every violation of the law "brought to the attention of law enforcement authorities” that does not lead to prosecution takes us one step closer to a "government of men, not laws,” in which there will be one law for the elite and connected, and another law for the targeted (and the rest of us).   The only barrier:  The good behaviour of men who, after all, are not only lawyers but also politicians.

That Cassidy sees the question of "whether Congress has criminalized innocent behaviour” as less important than whether prosecutorial discretion is being "properly” exercised may stem from confidence that a J.D. (Harvard) "Masonic handshake” will protect him from the "ballooning law + prosecutorial malice” mousetraps that lie in wait for the rest of us.  But circumstances have a way of changing; just ask Martha Stewart.


Related:
Outside reading (HT for some: Instapundit):

Posted by: Old Grouch in Rants at 21:03:32 GMT | No Comments | Add Comment
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