a popular game in the U.S. Attorney’s office in the Southern District of New York was to name a famous person — Mother Teresa, or John Lennon -‐ and decide how they could be prosecuted: “It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like “false statements” (a felony, up to five years), “obstructing the mails” (five years), or “false pretenses on the high seas” (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: ‘prison time’.”
With so many more federal laws and regulations than were present in Jackson’s day, the task for prosecutors of first choosing the man – or woman – and then pinning the crime on him or her has become much easier. This problem has been discussed at length in Gene Healy’s Go Directly To Jail: The Criminalization of Almost Everything, and Harvey Silverglate’s Three Felonies A Day. The upshot of both is that the proliferation of federal criminal statutes and regulations has reached the point that virtually every citizen, knowingly or not (usually not) is potentially at risk for prosecution. That is undoubtedly true, and the consequences are drastic and troubling.
The result of overcriminalization is that prosecutors no longer need to wait for obvious signs of a crime. Instead of finding Professor Plum dead in the conservatory and launching an investigation, authorities can instead start an investigation of Colonel Mustard as soon as someone has suggested he is a shady character. And since, as Wu’s game illustrates, everyone is a criminal if prosecutors look hard enough, they’re guaranteed to find something eventually.
You remember of course the insane case of Gibson Guitars. If you’re of a certain age, you remember a time in America when it wasn’t illegal to rescue a deer, remodel your home, open a lemonade stand or throw a frisbee. That time sadly is no more. How about this: for every new law a legislature wants to pass, it has to get rid of ten existing laws.