Wendy Kaminer in The Atlantic: 'When Everyone is an Offender'


Stalwart civil libertarian (and longtime friend) Wendy Kaminer points out in The Atlantic how a recent New York Times Magazine article, which lauded "fuzzy" prohibitions on insider trading, essentially scoffs at the time-tested guarantee of due process. Due process "requires that laws clearly delineate the boundaries between legal and illegal behavior, providing us with notice of our potential criminal liabilities and denying prosecutors the arbitrary, ad hoc power to police our private and public lives," Kaminer writes. She goes on to cite the recent case of a Boston firefighter who was acquitted of mail fraud, and whose acquittal caused a curious uproar from local media.

Locally, a Boston jury recently acquitted a former firefighter of mail fraud after he was caught engaging in bodybuilding while on disability leave. In response to an outcry over the acquittal of this apparently non-disabled defendant, jurors explained to the Boston Globe that while they considered him guilty of trying to defraud the pension system, "they did not accept that he was guilty of two counts of mail fraud, a federal crime that could have put the muscular 49-year-old behind bars for up to 20 years." He should have should have been charged in state court for simple fraud, jurors reportedly concluded. 
But cases like this are unusual. The vast majority of criminal cases never reach juries, much less the Supreme Court, so there are few checks on federal prosecutors who abuse a vague, expansive criminal code. We might all be prosecuted for committing "three felonies a day," my friend Harvey Silverglate has written. 

"When Everyone is an Offender," Wendy Kaminer, The Atlantic (September 28, 2011)

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