For example: someone embezzles a few thousand from their employer, simple felony theft. He buys a bass boat and a video game with it (money laundering: 5 years). He doesn't report the money as income (tax evasion: 10 years). He is offered a plea deal: 5 years, out in 2. If he loses at trial: many years, especially if he qualifies as a repeat offender.
I know someone who was faced with this and who accepted the plea. Based on everything I know now, he was guilty of something, but not of the crime he plead guilty to, and would not have been really guilty of the crimes he would have gone to trial with. So, now he is a felon. The state spent several tens of thousands on the incarceration he did get, he is shut out of many jobs because of his record, and the law enforcement establishment still to this day treats him like they have power and control over his life, even though he served the time he was sentenced to.
This is not to excuse his crime, for which he appears to be very sorry he did. An essential point of justice must remain: the punishment must fit the crime. Justice is never served when the charge is increasingly unrelated to the actual criminal act. It becomes a form of legal revenge, or social wrath on people we can coerce into admitting they did wrong.
People who want a peaceful and law-abiding society and who think we must be tough on law-breakers should be careful about what is going on. With every passing year it gets easier and easier for the average citizen, who intends on obeying the law, to find they have violated some obscure rule or regulation. If anyone reading this has ever thrown away a rechargeable battery in a landfill, they could be charged with a felony. Fill in the wet spot in your back yard? You may follow others who have damaged "wetlands" to federal prison. Fix a degraded and badly eroding streambank? You may face a crippling fine for disturbing the habitat of a federally-protected species.[1]
We are rapidly approaching the point anticipated by Ayn Rand in her novel Atlas Shrugged:
“There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted and you create a nation of law-breakers.”
(”Atlas Shrugged”, Part II, Chapter 3)
[1] Saving soil without a permit puts farmer in cross hairs of EPA http://www.mofb.org/FBPeople-WendellCurtman.html
You can't be put in double jeopardy, but our illustrious lawyers have found a way around that.
Here's the other thing, and it's big. Most of us have no criminal convictions or charges, and we have a lot to lose. If, for example, I were charged with a criminal offense, no matter how unfounded, I would lose my job, have a hard time getting another one, likely lose my house and vehicles, no insurance, and assorted other problems. The real hard core criminals have no such worries, as they've already got a criminal record. Therefore, it's much easier for cops to hammer a person that tries to be on the right side of the law than a person that doesn't care.
I'm also not convinced that most DAs really care whether you did the crime or not. Nifong is not an aberration. He just picked on someone with deep enough pockets to hire a good lawyer.
This sort of thing is one of the reasons that juries should be told the sentences for crimes of which defendants are accused, and should be allowed to specify maximum sentences with their verdicts; per CGA'68, there should be an explicit statement that any crime for which a jury mandates that a sentence be less than 365 days shall be either considered to be of a class for which no longer sentence was possible or else dropped altogether.
I've seen it argued that there's no legitimate reason for jurors to consider sentencing in determining guilt or innocence. Nice theory, except that the required standards of proof and mens rea should vary with the proposed sentence.
For example, suppose someone runs out of gas on a busy road and coasts to a stop in a wide spot of the road opposite a fire station, and if such wide spot is the only place within coasting distance to get out of traffic; the person then proceeds on foot to a gas station a mile away. Before the person returns to move his car, there is a fire call and the fire crew is delayed by about 90 seconds maneuvering one of their fire trucks out of the station. The motorist is charged with "Obstructing a fire crew".
Suppose you were on a jury and the facts were precisely as described. The law reads "Any person who commits any deliberate act whose effect is to materially delay the effective response of a fire crew to a fire shall be guilty of 'Obstructing a fire crew'". If the penalty for the crime was a $250 fine, would you acquit or convict? What if the penalty was a ten-year prison term? Would that affect your decision? Should it?
I would suggest that the nature of the sentence should affect the decision to acquit or convict, because it should affect the level of intent necessary to find guilt. If the law was written to deal with people who block fire trucks for the purpose of preventing timely response to fires (as would be implied if the sentence was ten years) the person in the scenario above would not qualify. If the law was written to deal with people who fail to afford fire crews and trucks adequate courtesy, the person above would qualify.
Unfortunately, in its desire to create criminals, the government frequently assigns sentences as though laws are intended to go after major deliberate crimes, but then tries to convince juries that they're intended to deal with minor offenses.