Commentary on Excessive Prosecutorial Success

Critics of the American justice system have put forth a great deal of evidence that it is unfairly slanted toward the government. In large part, this is attributed to over-criminalization of malum prohibitum conduct and the procedural advantage inherent in the plea-bargain device.

My own position is that “white-collar crime” is over-criminalized and -punished, especially at the federal level, while violent crime is under-criminalized and -punished at all levels.

But the point of this post is that one oft-cited statistic — the very high (95% and above at the federal level) conviction rates — enjoyed by prosecutors is in my view not an ideal proxy by which to gauge the problem.

Why not? Because a hypothetical “ideal” justice system would have a higher rather than a lower conviction rate. Indeed, the ideal system would be one in which 100% of law-breakers were prosecuted with 100% success and no innocent parties were prosecuted.

State prosecution is a burdensome and onerous process even if one is not ultimately convicted, and a system that fails to convict substantial numbers of defendants is by definition a system that frees large numbers of guilty parties and/or inflicts substantial harm on large numbers of innocent parties.

Unless one can show that we presently convict innocent parties at a rate higher than the acquittal rate of some purportedly superior system (which I think is unlikely and unlikely to be shown), a lower conviction rate is not something devoutly to be wished. The better view is toward winding-down over-broad laws and Title 18 in particular.

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