Follow POL on Twitter Jim Copland, director of Manhattan Institute's Center for Legal Policy, authored an op-ed in today's New York Post warning of legislation that grants to New York prosecutors an alarming degree of discretion and authority. In particular, Copland focuses on the Martin Act, which former governor Eliot Spitzer revived and bolstered to combat purported "financial fraud."
He writes:
In the wake of the 2008 financial crisis, New York politicians and judges have been itching to broaden the Empire State's Martin Act, which governs securities frauds. And this comes amid an explosion of criminal laws in this state.
It may sound like warranted crackdown, but don't be fooled: It's really part of a move to shift power to pols and prosecutors -- and it leaves average Joes befuddled and at risk of turning into accidental criminals.The proliferation of criminal statutes undermines a key principle: that folks know in advance what conduct could land them in prison.
It's obvious that crimes like murder, burglary, rape will be criminally punishable. But other laws have increasingly attempted to criminalize violations of government regulations, which often span volumes, leaving the average citizen unsure of what actions might be considered criminal.
Worse, many modern criminal laws are vague or ambiguous, ensuring that we're never truly on notice of what is or isn't a crime.
Both economic and individual liberty is threatened when legislative initiatives don't comport with traditional precepts of criminal law. Collectively dubbed overcriminalization, this phenomenon is also a vehicle through which legislators and others seek to regulate by prosecution. As Copland notes in his full article, this is a serious problem with dangerous consequences.
Admitted to the Bar in '52, as a tax an corporate finance lawyer, I had only one criminal defense case, which was assigned to me by the court under the then pro bono rules (ca. mid 60s). By the expenditure of an inordinate amount of time (and effort), despite being totally unqualified for such defense, the defendant was discharged after over 18 months incarceration (from a prosecution that should never have been brought and was never given due process). Because the presentation of failure of due process caused the court to embarrass itself through its own questioning, I was discharged from the pro bono list as "unqualified." Conclusion:
The greatest threat to individual liberty in the United States today is prosecutorial discretion.
It can be corrected.