“Criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something,” Supreme Court Justice Neil Gorsuch observed in 2019. Gorsuch elaborates on that theme in his new book Over Ruled, showing how the proliferation of criminal penalties has given prosecutors enormous power to ruin people’s lives, resulting in the nearly complete replacement of jury trials with plea bargains.
“Some scholars peg the number of federal statutory crimes at more than 5,000,” Gorsuch and co-author Janie Nitze note, while “estimates suggest that at least 300,000 federal agency regulations carry criminal sanctions.” The fact that neither number is known with precision, they suggest, speaks volumes about the “unpredictable traps for the unwary” set by the government’s ever-expanding rules.
To illustrate “the human toll” of “too much law,” the book tells the story of Florida fisherman John Yates, whose grueling legal odyssey began with the charge that he had discarded undersized red grouper. That alleged act supposedly violated a law aimed at deterring the destruction of potentially incriminating financial records. Gorsuch also recalls the pretrial suicide of 26-year-old computer programmer Aaron Swartz, whom prosecutors threatened with “decades in prison and millions in fines” for downloading a bunch of articles from an online academic library without permission.
Over Ruled emphasizes how overmatched ordinary people are in disputes with bureaucrats empowered to write the rules under which they operate. Those nemeses include officials charged with dispensing government benefits, deciding whether immigrants can remain in the country, and enforcing the frequently arbitrary and petty restrictions inspired by COVID-19. Gorsuch also decries draconian prison sentences and mass incarceration, again illustrating how his supposedly right-wing instincts frequently overlap with progressive concerns. His compassion for people confronted by bewildering, absurdly punitive legal codes defies ideological stereotypes.
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