Colin McCallin May 16, 2019

There is an expression in Latin, de minimus non curat lex, which means “the law does not concern itself with trifles.” We probably didn’t need to tell you that—no doubt your Latin is all brushed up on. Our apologies. Ipso apologium. Whatever. Anyway, the idea that a state’s system of justice should be called into action only for serious matters has made its way through the ages and become embedded in our society, but nonetheless during our time in criminal defense we have handled and heard about many cases that, to us and prosecutors and judges alike, are clearly overblown. So what’s the deal? Why do these cases come up so often? Is that really a problem? And, if so, is it a problem we can solve?

Wasted Energy

First of all, yes, it is a problem.There is no telling how much energy members of the criminal justice body expend every day attending to cases without substance; this slows down the entire operation of the law, diverts resources away from more important things, and exposes people to the risk of criminal penalties, if not to the penalties themselves, that the circumstances do not warrant. Law enforcement agencies meant to guard the safety of the public sometimes instead end up being used as weapons by, for example, resentful co-workers or jilted romantic partners. District attorneys sometimes take up cases initiated by neighbors in petty disagreements over landscaping. Honest, hardworking inkjet printers in Denver defense firms burn out as they create documents pertaining to all of these cases. And so on. Think of the poor printers!

The Root of It All

Our current system raises trivialities to the level of crime for a number of reasons, perhaps the principal one being that we are determined not to let offenses go unpunished. We cast a wide net over ourselves, expanding the application of criminal statutes—cautiously, but still—at the same time that we shrink the discretion of police officers and prosecutors. More events are recorded, more official procedures observed, more decisions passed to superiors. What may once not have turned into a police report now often does. A police report that may once not have landed on a DA’s desk now often does. The police are not mediators these days—they are under pressure to resolve conflicts as quickly as possible without endangering anyone, and making an arrest is often the best way to accomplish that. District attorneys are under pressure to avoid the public relations nightmare of dismissing a case that later turns out to be legitimate. All of this comes out of an understandable impulse: we want to prevent hastiness or corruption from altering the course of law. But our good intentions, as always in the imperfect world we occupy, have consequences we do not expect. The wide net we use scoops up a lot of small fish, so to speak, and while we deal with them systematically, bigger ones must wait to be fried. Our thoroughness comes at the price of efficiency.

Looking Forward

Is there a solution to this problem? Maybe not. However, there are surely options to alleviate it, and as we have done many times before on this blog, we recommend exploring those options in a spirit of compromise, moderation, and due care. We have written before about community policing, which would return to police some of their former power to mediate; this would be a good place to start. Perhaps there is an analogous approach that would make prosecutors feel less hesitant to drop cases their intuition tells them are insignificant. Our society may reach or may already have reached a tipping point where the net we use in criminal justice becomes too wide, where addressing trifles in our courts does more harm than a more efficient, less thorough approach would. To know how close we are to that point, and to react appropriately, we have to watch closely and allow the debate to continue.