Capacious crimes and creative prosecutors

A recent opinion piece in The Wall Street Journal argued that it’s dangerous to own or manage a business these days.  Our government’s ever expanding maze of laws, including many strict and vicarious liability crimes, puts businesses and their managers at high risk for criminal prosecution.  More pointedly, prosecutors are able to “exploit vague laws to criminalize behavior that no one thought was illegal.”  But this dangerous trend isn’t limited to Wall Street; it’s happening on Main Street too.

An excellent example of over-criminalization can be found in Michigan where the legislature created a felony called “unauthorized access to a computer.”  The idea behind the law, of course, was to prosecute identity theft, computer hacking, and other computer related crimes.  This sounds reasonable enough, until prosecutors started using the law creatively and aggressively.  According to The Oakland Press, one man learned how capricious prosecutors can be when they charged him with this felony for reading his wife’s emails.  The prosecutor didn’t care that the man did it to confirm that his wife was having an affair, or that his wife had previously given him her password (which her attorney denies), or that the computer actually belonged to the man who allegedly accessed it without authorization.  Neither commonsense nor Michigan’s debt-ridden coffers could stop the prosecutor from spending state resources on his relentless pursuit of this man.   

Another example can be found in Wisconsin, which criminalizes disorderly conduct.  Wisconsin defines disorderly conduct as conduct that “tends to cause or provoke a disturbance,” even when no actual disturbance ensues.  Further, for the purpose of prosecuting people in its adult criminal system, Wisconsin defines “adult” to automatically include seventeen-year-old children.  These two absurdities conspire to create an even bigger (and costlier) problem: by far the most common crime of conviction for seventeen-year-olds in Wisconsin is—you guessed it—disorderly conduct.  That turns a lot of children into criminals simply for behaving like children.  Further, the taxpayer has the privilege of paying for the litigation of these cases, as well as the subsequent incarceration or supervision of these newly minted criminals.

In addition, there are thousands of unreported cases where creative prosecutors use overly broad laws to try and create crimes and criminals out of thin air.  Here are just three short examples:

• Felony extortion is defined as threatening a person with bodily harm to get him to do an act against his will.  Under this statute, prosecutors charged a homeowner for telling a known juvenile delinquent that he would “kick his ass”—a threat of bodily harm—if he didn’t leave his property—an act against the juvenile’s will.  (Never mind that the juvenile was trespassing and had no business on the property.)  Result: The prosecutor reluctantly dismissed the case when the juvenile “victim” failed to honor his subpoena and instead skipped out on the trial. 

• Felony kidnapping can include keeping a child longer than the parent allows.  Under this statute, prosecutors charged a grandfather for keeping a child two hours past his return time.  The prosecutor didn’t care that grandpa had run out of gas and was found in his car, with the child, on the side of road, just a few miles from home.  Nor did the prosecutor care that mommy didn’t want to prosecute once she found out why grandpa was late.  Result: The case was settled short of trial for a plea to disorderly conduct.    

• Felony false imprisonment is defined as keeping a person in a place against his will, with or without physical restraint.  Under this statute, prosecutors charged a man for trying to keep his highly intoxicated friend from walking home alone on a sub-freezing, Midwestern winter night.  Result: In part because the man’s efforts at persuasion failed, and the friend eventually walked home anyway, the man was found “not guilty” by a jury. 

With these vaguely worded laws, and the indiscriminate and creative application of these laws, it’s easy to understand why America has the world’s highest incarceration rate.  In fact, given the incredibly broad way we define the terms “crime” and “criminal,” it’s likely that we’re all criminals.  Some of us just haven’t been caught yet.