Stephen F. Smith, Professor of Law at the University of Notre Dame, authored an interesting piece published on The Online Library of Law and Liberty blog. In his commentary which reflected on Harvard Law School's Professor William J. Stuntz's criminal law scholarship, Professor Smith conveyed the growing concerns surrounding our ever-expanding criminal justice system.
The ever-growing body of criminal law that this political dynamic generates is more far-reaching in scope than most citizens comprehend. Many criminal laws are aimed at conduct that is not dangerous to others (such as "morals offenses" and other "victimless" crimes) or inherently wrongful (such as regulatory offenses that punish unintentional violations of technical, if not obscure, administrative regulations). Even when new criminal legislation is aimed at dangerous conduct, the legislative goal typically is not to define the precise conduct that threatens the public safety. Instead, the goal is to confer on law enforcement as much power as possible over the area in question and to make it easy for prosecutors to convict those few they select for prosecution from the considerably larger universe of offenders.
The result, as Stuntz famously put it elsewhere, is modern criminal codes that "cover everything and decide nothing." To put it differently, it is not the criminal law today that determines what conduct merits punishment. That all-important determination is punted to politically accountable prosecutors, who are unique in our system in having enormous, virtually unchecked power over the lives, liberty, and property of citizens. Once prosecutors have decided to pursue criminal charges, it is overwhelmingly likely that the accused will be convicted - so much so, in fact, that the vast majority of persons accused of crimes (well in excess of ninety percent) plead guilty rather than take their chances at trial. The small share who do insist on holding the state to its burden of proof almost always end up convicted anyway, receiving worse sentences than they would have had they waived their rights and pled guilty on the prosecutor's terms.