Fixing The Criminal Code

Ignorance of the law is not a defense. That's a good thing for politicians and prosecutors because federal and state criminal codes are so vague, duplicative, inconsistent and complicated that even experts have little chance of mastering them. While signs point to an increasing willingness to reform our criminal justice system, getting the key figures to agree to pare down criminal codes to workable levels remains a long-shot. As things stand, it is hard to argue that justice is being served.

The primary obstacle to reform in this case is prosecutors. Under current codes, prosecutors are often able to level charges of several crimes based on a single act. That allows them to threaten defendants with massive penalties in order to secure a guilty plea. The confusing and overlapping criminal laws are weapons prosecutors can wield to achieve victory, despite the obvious injustice of that strategy. Overcharging defendants becomes a matter of course, rather than a problem to address.

The federal criminal code includes an estimated 100,000 regulations that carry criminal penalties. The Congressional Research Service was actually unable to count the total number of offenses in the federal code. Every social problem that draws the attention of the media is quickly codified in a new, and likely overlapping, criminal statute. Old laws are rarely if ever removed, and no one takes the time to check if the new law functionally doubles the penalty for an existing crime. This has led to a massive disconnect between the penalties allowed under the law and the punishment most citizens would consider fair.

At least one expert has suggested that a criminal code could cover all the actions society considers unacceptable with as few as 300 offenses. Such a code could be understood by police, prosecutors, defense attorneys, judges and citizens. The benefits of a streamlined code are clear to all. Only the people who benefit from incoherency and confusion stand in the way.

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