June 22, 2010 2:39:28 PM by
One of the many sobering subtexts to Three Felonies a Day is that the U.S. has the highest rate of incarceration in the civilized world. The Economist shines a bright light on this phenomenon in its current issue, and highlights the role that vague statutes play in this prosecution mill.
The system has three big flaws, say criminologists. First, it puts too many people away for too long. Second, it criminalises acts that need not be criminalised. Third, it is unpredictable. Many laws, especially federal ones, are so vaguely written that people cannot easily tell whether they have broken them.
The article also highlights an often under-appreciated aspect of the overburdened prison system: the stacked deck against criminal defendants, where a guilty plea seems like an offer even an innocent cannot refuse.
Innocent defendants may plead guilty in return for a shorter sentence to avoid the risk of a much longer one. A prosecutor can credibly threaten a middle-aged man that he will die in a cell unless he gives evidence against his boss. This is unfair, complains Harvey Silverglate, the author of “Three Felonies a Day: How the Feds Target the Innocent”. If a defence lawyer offers a witness money to testify that his client is innocent, that is bribery. But a prosecutor can legally offer something of far greater value—his freedom—to a witness who says the opposite. The potential for wrongful convictions is obvious.
The full article is must-read; click here to view it on economist.com.
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May 01, 2010 8:13:18 PM by
One of the major hurdles in addressing the problem laid out in Three Felonies a Day--the abuse of vague laws by hard-charging U.S. Attorneys--is the tendency of legal analysts to treat prosecutorial abuse with tunnel vision. That is, criticism is often levied in piecemeal fashion, and only when an individual's sacred ox is gored. But Anna Stolley Persky provides a shining exception: a panoramic view of prosecutorial abuse, "Aggressive Justice," featured in the current edition of the ABA Journal.
[Excerpts after the jump]
April 16, 2010 3:33:17 PM by
This Monday, the Supreme Court will hear argument in an important free association case, Christian Legal Society v. Martinez. The case involves an evangelical Christian student group that, while accepting all students at its functions, requires leaders and voting members to sign a Statement of Faith. In today's Wall Street Journal, I explain why this is a core area of protected First Amendment expressive association, rather than, as some claim, invidious discrimination. If the Supreme Court decides that public colleges may deny religious groups the same rights as any other group on campus, the result will be less, not more, genuine campus diversity.
This is a case not widely understood by lawyers, judges, college administrators, media commentators and reporters, and many others. I hope that you will give it a careful reading and recognize why The Foundation for Individual Rights in Education (FIRE), whose amicus brief I signed as FIRE's counsel-of-record, has weighed-in on the side of the Christian Legal Society rather than on the side of the public law school that has, in fact, discriminated against the CLS on account of its following its religious briefs. It is a case that turns a commonly understood (or mis-understood, as the case may be) notion of "inclusion" on its head.
Read the op-ed on the Wall Street Journal website here; after the jump, view a PDF of the print edition in your browser.
March 25, 2010 3:20:30 PM by
For the past 29 years, the Ford Hall Forum's Louis P. and Evelyn Smith First Amendment Award has honored individuals or organizations that demonstrate extraordinary commitment to promoting and facilitating the thoughtful exercise of our right to freedom of expression. I could not be more proud to report that this year the Forum has chosen FIRE to receive this prestigious award.
Video of the award ceremony is after the jump. Many thanks to the Ford Hall Forum for bestowing this honor upon FIRE.
February 23, 2010 3:19:14 PM by
Over the past dozen years, my main areas of law practice have resulted in two books: The Shadow University (co-authored with Alan Charles Kors), which discusses the deprivations of liberty and related absurdities on American campuses, and Three Felonies a Day, which recounts how vague statutes have made everyone a potential target of federal prosecutors. What connects these seemingly disparate phenomena? As I explain in this Minding the Campus blog entry, "the respective cultures of the college campus and of the federal government have each thrived on the notion that language is meant not to express one's true thoughts, intentions and expectations, but, instead, to cover them up." Rules and regulations-both on campus and in the real world have been expressed in language that no one can really understand. As a result, students and citizens have, with increasing frequency, inadvertently run afoul of the rules and have suffered for it.
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