We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
‘EVERYTHING’S BEEN CRIMINALIZED,’ SUPREME JUSTICE COMPLAINS
Respected observers of federal criminal jurisprudence have long criticized the over-criminalization of life. Most famously, long-time defense attorney Harvey Silverglate wrote his book Three Felonies a Day that
The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague.
During oral arguments last week in Lange v. California – California case holding in which the lower courts ruled that a police officer may always enter a suspect’s home without a warrant if the officer is in pursuit of the suspect and has probable cause to believe that the suspect has committed a misdemeanor – Supreme Court Justice Neil Gorsuch revealed refreshing skepticism of the criminal justice system that channeled Attorney Silverglate.
It is “settled,” California’s lawyer argued, “that officers may enter a home without a warrant if they have probable cause to believe a fleeing suspect has committed a felony.” Gorsuch countered, “We live in a world in which everything has been criminalized. And some professors have even opined that there’s not an American alive who hasn’t committed a felony in some—under some state law. And in a world like that, why doesn’t it make sense to retreat back to the original meaning of the 4th Amendment, which I’m going to oversimplify, but generally says that you get to go into a home without a warrant if the officer sees a violent action or something that’s likely to lead to imminent violence….Why isn’t that the right approach?”
Reason, ‘Everything Has Been Criminalized,’ Says Neil Gorsuch as He Pushes for Stronger Fourth Amendment Protections (February 25, 2021)
Library of Economics and Liberty, Three Felonies a Day? (January 5, 2019)
– Thomas L. Root