On July 8, 2013 in the Columbia Law Review, Glenn Reynolds declared: Prosecutorial discretion poses an increasing threat to justice. The threat has in fact grown more severe to the point of becoming a due process issue. He then proved his point by revealing a disgusting game played by zealots working in the Southern District of New York’s US Attorney’s Office, where they would name a famous person – Mother Teresa or John Lenon – and decide how he or she could be prosecuted.

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder or other crimes you’d see on [TV] but rather the incredibly broad yet obscure crimes that populate the U.S. Code…

Tim Wu – American Lawbreaking, Slate (October 14, 2007)

Which leads to the fact that Attorney General (and former Supreme Court Justice) Robert Jackson was correct when he envisioned that “If a prosecutor is obliged to choose his cases, it follows he can choose his defendants. This method results in the most dangerous power of the prosecutor, that [they] will pick people [they] think [they] should get, rather than pick cases that need to be prosecuted.” And that mentality has lead us to this:

The result of over criminalization is that prosecutors no longer need to wait for obvious signs of a crime. Instead of finding Professor Plum dead in the conservatory and launching an investigation, authorities can instead start an investigation of Colonel Mustard as soon as someone has suggested he is a shady character. And since, as the game Wu describes illustrates, everyone is a criminal if prosecutors look hard enough, they are guaranteed to find something eventually.

Glenn Reynolds – Ham Sandwich Nation: Due Process when Everything’s a Crime

And this is why surveillance is such a serious problem. As pointed out in We See It All our liberty is in serious jeopardy. And as my case proves, overzealous & unethical prosecutors (not the police) are a clear and present danger to society because ultimately police have no power, if the prosecutor drops the case that’s the end of it. So if prosecutors wants to stop police misconduct all they have to do is drop cases; however, there are currently very few checks on prosecutorial power and misconduct and we as a society need to address that fact.

As mentioned before on this blog, our criminal justice system is broken. And it’s mostly the “conservatives” fault. The Warren court gave us all of our cherished “rights” and the conservative courts since have embarked on a mission to take all of those cherished rights away.

Back in 1969, our justice system had just become more just (Again, thanks to the Warren Court). In Scott v United States, 135 US App DC 377; 419 F2d 264, 276 (1969) Chief Judge Bazelon opined:

The prosecutor clearly cannot have carte blanche to apply whatever tactics he wishes to induce a guilty plea. A policy of deliberately overcharging defendants with no intention of prosecuting on all counts simply in order to have chips at the bargaining table would, for example, constitute improper harassment fo the defendant.

See People v White, 390 Mich 245, 258-259 (1973)

Overcharging is just one of the many problems with our unjust system of justice.

So on Bill Maher last night, this happened. The link takes you to a snippet video (on YouTube) of Bill’s guest saying what I’ve thought (known) about crypto currencies since their inception in roughly 2009 – they are a “kind” of “Ponzi scheme“. I say “kind of” because it’s not exactly a ponzi scheme but for lay people it’s the best way to describe what is happening with these “currencies”.

First, labeling these “things” (there not actually things, they are imaginary “securities“) as a currency is a bold face lie, these things are actually just “stocks” in an algorithm that are either mined via the rules of the algorithm or bought from an exchange and the records of all “owners” are recorded on a blockchain. (That isn’t really anonymous.)

Second, technically they should be labeled “securities” but they should be also marked as “junk status” securities. So, you’ve been warned.

So today’s post is about an obscure federal sentencing fact, that allows a federal court to base a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.

As you can see from the link, there is case – that has been in litigation for quite some time – and it appears that the SCOTUS is considering taking it, as a ton of preliminary briefs have been filed by the various concerned parties. This is a case to watch because the practice should be banned. For example: drug defendants have often complained about the problems of “ghost dope“.

Even though McClinton doesn’t deal directly with the problem of ghost dope, the SCOTUS might address it and the other troubling aspects of “relevant conduct” in sentencing. As the link explains: relevant conduct can include dismissed charges, uncharged conduct, and even acquitted conduct. Under certain circumstances, relevant conduct may further include conduct of coconspirators, and conduct beyond the offense of conviction.

Here’s hoping the SCOTUS will render relevant conduct unconstitutional. It looks like Gorsuch & Kavanaugh lean that way. But this highlights a greater problem with the “Justice System”, it’s a system that flows with the political winds. And as we saw this year with their “Dobbs” decision, settled law can become unsettled in a day. Given that our population is extremely ignorant of where most of our cherished rights come from (the Warren Court: 1953 – 1969) and that all Courts since have endeavored to erode those rights. Note that the Burger Court (1969 – 1986) gave us Roe; BUT, also gave us the nonsensical “good faith exception” to the exclusionary rule.

The bottom line is: all of the rights you think you have were given to you by the SCOTUS from 1953 until 1980 and the SCOTUS has been slowly limiting them or taking them away ever since… this case could reverse that trend.

UPDATE (August 15, 2023): The SCOTUS punted the issue, arguing that the Sentencing Commission is going to review the issue and “should” outlaw the practice.

The Typical American Citizen (TAC) thinks: “If you aren’t doing anything wrong, you shouldn’t worry about government surveillance.”

When the TAC is then informed that the government has illegally collected THEIR communications; they react with, “That is un-American. It is a clear abuse of MY privacy and it must be stopped; AND, Congress feels the same.

As I’m sure you’re probably well aware, I’m about to tell you that their view of surveillance is wrong. The FBI is not a benevolent organization. While note as bad as the KGB, it has the same mission as a new book entitled “The Gospel of J. Edgar Hoover explains”.

I’ll assume that you’ve watched My Cousin Vinnie AND that you don’t understand this fact, that scenario plays out across this nation many times each year. That is, an innocent person stands accused of a crime they didn’t commit by a corrupt prosecutor. (The blame lies solely with the prosecutor, not the cops or the FBI). Unfortunately – for the vast majority of these defendants – their dilemma will end with an illegal conviction (usually for a lessor included offense) via a “plea deal” with the likely corrupt prosecutor.

The current season (2023) of The Accused on A&E shows this reality in dramatic – one hour crime drama – form. So to continue the “Vinnie” analogy, just think what would have happened had Vinnie not shown up in Alabama. It’s clear that their stuttering & inept public defender would have lost the case and Vinnie’s cousin and his friend would currently be on death row AND their only hope for exoneration would be the exoneration project, even though the evidence – when looked at accurately – proves their innocence.

Several biases are at work to keep our corrupt system of justice motion. The first is falsity that law enforcement officers are benevolent, they are not (and cannot be), simply because too much behavior is illegal. Like I explained before, EVERYONE has violated a federal or state law. (Speeding, Jaywalking, Sharing your Netflix password or eating a French Fry in the wrong location etc…) And in a surveillance (i.e police) state, the only thing stopping you being prosecuted for the many crimes you commit are the various prosecutor’s time & discretion and that should really, really scare you.

As I’ve explained – ad nauseam – on this site, I am the victim of a malicious prosecution by a corrupt prosecutor named Keith A. Becker, who teamed up with an FBI that has always practiced “the ends justifies the means” law enforcement. The Palmer Raids initiated the FBI’s illegal enforcement stance and it continues to this day even though Hoover is long gone…

This philosophy trickled down to every other law enforcement agency in the nation, under the guidance of the biggest piece of shit ever to be in federal employment, J. Edgar Hoover. Many books have been written about this closeted and ridiculously paranoid homosexual. (Again see the book mentioned above) So anyone who denies what a massive piece of shit he was is simply uninformed or completely dishonest, because his evilness is an objective statement of fact… In other words, claiming Hoover was great is akin to claiming Hitler was great and we know that’s absurd. LOL

Americans need to face the facts head on and to become a lot more skeptical of law enforcement methods and motives…