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Prosecutorial overcharging: How big of a problem is this?

Well-known political columnist George Will points out in a recent article he penned that approximately 4,500 federal criminal statutes are currently in force across the country, along with "innumerable regulations backed by criminal penalties that include incarceration."

Will notes that large number to underscore the point that he and many other commentators have routinely made in recent years, namely, that fundamental logic and fairness in the American criminal justice are undermined by an overcriminalization of American life.

And that is harmful for myriad reasons, notes Will.

Here's one: The bedrock criminal law principle that any person charged with a crime should have been reasonably aware in advance of acting that his or her conduct was unlawful goes out the window when there are thousands of statutorily proscribed activities.

And here's another: Given the vast charging possibilities presented to prosecutors, overcharging has become a commonplace, which Will says unfairly straitjackets criminal suspects. They are left with the limited choice between "capitulation-through-plea-bargain or a trial with a potentially severe sentence."

And the plethora of charging options makes ensnaring individuals in an alleged criminal web of activity relatively easy for criminal law authorities in areas that are of keen government interest at any given time. These days, for example, federal and state prosecutors are bringing charges against a wide array of actors within the medical industry for Medicaid and Medicare fraud. That is similarly the case in many instances alleging white collar crime.

We have too many laws, Will says, and they are constantly being added to.

We need a rethink on this, the columnist says. Congress, notes Will, "has work to undo."

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Coral Gables Office

Frank A. Rubino, Esq.
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Coral Gables, FL 33134

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Frank A. Rubino, Esq.
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Houston, TX 77002

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