“The criminal justice system has grown so buoyant and encompasses so much previously innocent behavior that almost anyone can be arrested for anything,” Supreme Court Justice Neil Gorsuch noted in 2019. Gorsuch elaborates on that theme in his new book. Over ruledshowing how the proliferation of criminal penalties has given prosecutors enormous power to ruin people’s lives, resulting in the almost complete replacement of jury trials with plea deals.
“Some scholars estimate the number of federal statutory crimes at more than 5,000,” Gorsuch and co-author Janie Nitze note, while “estimates suggest that at least 300,000 federal agencies are subject to criminal penalties.” The fact that neither number is precisely known, they suggest, speaks volumes about the “unpredictable traps for the unwary” set by the government’s ever-expanding regulations.
To illustrate the “human toll” of “too many laws,” the book tells the story of Florida fisherman John Yates, whose grueling legal odyssey began with an accusation that he had discarded undersized red grouper. This alleged act would violate a law aimed at preventing the destruction of potentially incriminating financial data. Gorsuch also recalled the pretrial suicide of 26-year-old computer programmer Aaron Swartz, who prosecutors threatened with “decades in prison and millions in fines” for downloading a number of articles from an online academic library without permission.
Over ruled highlights how overmatched ordinary people are in disputes with bureaucrats who have the power to set the rules under which they operate. Those enemies include officials charged with delivering government benefits, deciding whether immigrants can remain in the country, and enforcing the often arbitrary and frivolous restrictions inspired by COVID-19. Gorsuch also denounces draconian prison sentences and mass incarceration, once again illustrating how his supposedly right-wing instincts often overlap with progressive concerns. His compassion for people confronted with baffling, absurdly punitive legal codes defies ideological stereotypes.
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