The Federal Rules of Criminal Procedure: One of the Most Evil Books in Print

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I recently
obtained the latest edition of West's
Criminal Code and Rules
, the book containing the rules you
need to know if you are ever accused of a federal criminal offense.
The book is updated every year, and each new edition supersedes
the prior edition. It gets worse every year.

The West's
edition now runs to more than 1600 pages, with abridgments and supplements.
In addition to the Rules of Criminal Procedure, the book contains
selected federal criminal statutes, the Federal Rules of Evidence,
the Federal Rules of Appellate Procedure, and the Rules of the Supreme
Court of the United States. On virtually every page are mechanisms
to hurt, humiliate, control and enslave people to the government's
will — all presented within a framework of procedural rules.

In theory,
these rules provide an accused with avenues to defend himself. But
one can judge a scheme of procedural rules by its fruits, and the
codification, growth and expansion of the Federal Rules of Procedure
(of which most state procedural codes are virtual copies), have
produced the world's
highest incarceration rate
— and probably the highest incarceration
rate ever registered in any society in human history. Even more
significantly, the Federal Criminal Code and its procedural rules
and guidelines have almost
eliminated criminal trials
in many jurisdictions, because most
defendants are unable to defend themselves effectively under the
rules and simply plead guilty. Such is the lopsided nature of the
Federal Rules that they produce untold mountains of printed accusations
and claims against individual Americans, while facilitating no more
than a few sentences (generally at sentencing hearings) in rebuttal
in most cases.

Footnotes are
found on virtually every page of the Federal
, tracing dates of amendments and the steady progression
of punishments over time. In general, Congress has ratcheted up
sentences, expanded the limitation periods in statutes of limitations,
expanded rewards for those who cooperate with the government, and
limited or eliminated avenues for people to challenge government
accusations and court judgments. One is hard pressed to find crimes
described in the book as misdemeanors, even if they were misdemeanors
long ago. Today, most federal crimes are felonies, and conviction
brings more or less automatic prison time.

or removing
motor vehicle identification numbers? Up to 5 years
in Federal prison. Using the telephone to incite or to "organize,
promote," or even encourage
a riot? Up to 5 years. Attempting to coerce any federal employee
into "any
political activity"
? Up to 3 years. Removing or affixing
a U.S. Customs seal on any merchandise without
government permission
? Up to 10 years in prison. Transporting
"terrorists" on your boat? Up to life in prison. Engaging
in "street
gang" activity
? An additional 10 years may be added to
your sentence. Knowingly using a misleading domain name on the Internet
in order to attract viewers to online porn? Up to two years in prison.
Sending a letter in the mail urging insurrection? Up to 10 years.
Trading with known pirates on the high seas? Up to 3 years.

The book seems
to provide dozens of separate laws exposing unwary Americans to
federal prison for simply filling out paperwork wrong. (Note that
these provisions are almost never applied to people in government,
who regularly fill out paperwork incorrectly.) There are provisions
subjecting Americans to life
in prison for cocaine possession
. There are open-ended provisions
which may (or may not) criminalize pouring a cup of coffee on the
ground (and thus violating the Clean Water Act) or accidentally
catching certain breeds of fish from the oceans. It remains only
for a savvy prosecutor to fill in the blanks and add to the list
of crimes that Congress may (or may not) have created.

Few people
are aware that the Federal Rules (not just of criminal procedure
but of civil procedure, appellate procedure, bankruptcy procedure
and Supreme Court procedure) are riddled with provisions that grant
more time to the government to file and respond to pleadings and
briefs, greater privileges of appearance, and greater ease of prosecuting
and defending litigation than individuals in the private sector.
The governing advisory committees that produce these rules of procedure
have offered no explanation for these filing
requirement disparities

Just a few

  • Federal
    Rule of Civil Procedure 12(a) provides that U.S. government
    parties have 60 days to answer civil complaints, compared with
    only 20 days for private-sector parties. (This same 60-day/20-day
    filing disparity applies to the filing of cross-claims, counterclaims
    and third-party claims as well);
  • Federal
    Rule of Appellate Procedure 4(a) provides that litigants have
    30 days to file appeals in civil cases, "but if the United
    States or an officer or agency thereof is a party, the notice
    of appeal may be filed by any party within 60 days after such
  • Federal
    Rule of Appellate Procedure 4(b) provides that the United
    States has 30 days to appeal from criminal judgments, compared
    with only 10 days for criminal defendants.
  • Federal
    Rule of Appellate Procedure 40(a)(1) provides that petitions
    for rehearing "may be filed within 14 days after entry of
    judgment" in a civil case unless "the United States
    or its officer or agency is a party," in which case any party
    may seek rehearing within 45 days of judgment.

There are also
provisions of the Rules that grant the government greater
privileges with regard to the filing of amicus curiae briefs
in support of government positions:

  • Federal
    Rule of Appellate Procedure 29 allows "[t]he United States
    or its officer or agency, or a State, Territory, Commonwealth,
    or the District of Columbia" to "file an amicus-curiae
    brief without the consent of the parties or leave of court"
    while "[a]ny other amicus curiae may file a brief
    only by leave of court or if the brief states that all parties
    have consented to its filing";
  • U.S. Supreme
    Court Rule 37.4 provides that "No motion for leave to file
    an amicus curiae brief is necessary if the brief is presented
    on behalf of the United States by the Solicitor General; on behalf
    of any agency of the United States . . . ; on behalf of a State,
    Commonwealth, Territory, or Possession when submitted by its Attorney
    General; or on behalf of a city, county, town, or similar entity
    when submitted by its authorized law officer." All other
    amici are required to seek permission to file such briefs.

When compounded
over time and federal jurisdictions since the 1930s (when the feds
began codifying rules of court procedure), these differing deadlines
for drafting briefs and pleadings have translated into millions
of hours of extra time for Justice Department lawyers to research
and prepare litigation documents. The disparities have almost certainly
contributed to profound inequalities exhibited between Americans
of different social, income and political strata in the past several


Americans seeking
to access the federal courts independently will find that the filing
fees are substantial. It now costs $350 to file a petition or a
lawsuit in federal court. That is, unless you are a government lawyer,
and then there are no filing fees whatsoever. Filing an appeal?
Another $450 for parties in the private sector. Again, free for
the government. In recent years there have been repeated arguments
that certain politically marginalized individuals (incarcerated
prisoners, for example) file too many "frivolous" lawsuits.
Congress responded by drastically
limiting the rights
of such people to file suits in federal
court. Not so for the greatest single source of truly
cases — the U.S. Justice Department — whose access
to the courts remains limitless. This entity alone is responsible
for thousands of false
against innocent Americans, many of whom have languished
in prisons over the decades.

When neoconservatives
gripe that federal courts coddle defendants (or would coddle "terrorists"),
they are depicting a fictional court system that exists only in
their imaginations. In practice, the federal courts overwhelmingly
favor the government, and the rules of procedure are loaded with
tricks and traps for the poor and the unwary. Anyone who faces the
federal government in court knows that these "protections"
are elusive, far-fetched, and in some cases illusionary.

Most so-called
defense lawyers shiver in fear at the thought of trying to actually
"defend" a client from a federal prosecution. Most begin
their "defense" by seeking a plea bargain. Here
is an interesting article describing the exodus of criminal defense
lawyers from the field due to the increasingly lopsided rules of
procedure. Criminal defense is not only unrewarding financially;
it can be downright dangerous. Many of the most high profile defense
lawyers of the past century — including Clarence Darrow, William
Kunstler, F. Lee Bailey, Bruce Cutler, Lynne Stewart, Geoffrey Fieger
(and doubtless many others) — have been subjected to criminal prosecution
themselves after defending clients too

A recurring
trick in federal court occurs when "defense" lawyers convince
their clients to plead guilty to what a defendant believes is a
minor count of a large indictment, in exchange for the government
dropping other counts. After the guilty plea, a sentencing investigation
is conducted by the U.S. Probation office (which is theoretically
neutral but which in practice works closely with the prosecution).
The Probation Office's "presentence investigation report"
invariably recommends a sentence consistent with conviction on all
the counts that were "dropped" by the government in the
plea deal, and the defendant is then sentenced according to the
allegations of the prosecution
(without any ability to challenge
such allegations at a trial). The lawbooks are literally filled
with appeals of such sentences. I have read many dozens of these
cases. There are probably hundreds. Here is a thoughtful dissent
by a federal judge regarding this shameful practice.

What makes
the Federal Criminal Code truly despicable is its disguise
as a code of fair and equal procedural protections. Indeed, this
deception makes West's Federal
Criminal Code and Rules
worthy of inclusion among other
infamously cruel books of human history. It deserves a place on
the shelves next to the Communist Manifesto, Mein Kampf,
and Keynes' General
Theory of Employment, Interest, and Money
. The Federal
Criminal Code documents the advancement of coordinated, systematic
scheme of state tyrannical control — with a procedural overlay.

4, 2011

Dr. Roger
Roots, J.D., Ph.D. [send him
] has recently authored a detailed article on the unfairness
of the Federal Rules of Procedure for the American
Journal of Trial Advocacy

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