Worse, while we citizens can go to prison for unwittingly breaking laws of which we weren’t aware, prosecutors and law enforcement officers who wrongly arrest, charge, and try citizens based on a misunderstanding of the law generally face no sanction or repercussions. Under the doctrine of qualified immunity, a police officer who illegally arrests someone because he wasn’t aware of the law can only be held liable if the law in question was “clearly established” at the time he violated it. Prosecutors are protected by absolute immunity, which basically shields them from liability no matter how egregious their mistakes.
We need to move away from the idea that every act we find immoral, repugnant, or unsavory needs to be criminalized. Every new criminal law gives prosecutors more power. Once we have so many laws that it’s likely we’re all breaking at least one of them, the prosecutor’s job is no longer about enforcing the laws, but about choosing which laws to enforce. It’s then a short slide to the next step: Choosing what people need to be made into criminals, then simply picking the laws necessary to make that happen.
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