Opinion: Too Many Laws, Too Much Prosecutorial Discretion

George Will is a noted political columnist who offers up personal views on a wide-ranging number of topics.

Unsurprisingly, he has some very candid things to say about criminal law, focused most specifically on what he terms "the dangers posed by the intersection of prosecutorial ingenuity with the expansion of the regulatory state."

Simplified, that means this: Increasingly more activity is being defined as criminal in state and federal statutes, with prosecutors finding that they have ever-expanding prerogatives when it comes to charging individuals with criminal offenses.

Too many crimes, coupled with citizens' increased difficulties in even understanding what is illegal these days, results in a nearly unfettered prosecutorial discretion.

As Will notes in an opinion piece he wrote for the Washington Post on the proliferation of criminal statutes leading to overcharging, there are an estimated 4,500 federal criminal statutes currently in force. If a wily and determined prosecutor has a problem with a certain individual, he or she can likely come up with some criminal charge to levy within a relatively short time.

That is truly scary, notes Will, who writes that there are now "too few inhibitions on prosecutors and ongoing corrosion of the rule and morality of law."

Particularly troubling, in Will's view, is the ditching in some instances of the longstanding principle that a person accused of criminal conduct should have been on notice -- that is, should have reasonably known -- that he or she was engaging in unlawful activity. With the thousands of statutes presently on the books and being constantly added to, that knowledge cannot be readily assumed in any given case.

With so many laws and so much prosecutorial discretion in criminal charging, it is certainly an imperative for any person accused of a crime to have ready access to a proven and aggressive criminal defense attorney.

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