There's been a lot of talk about overcriminalization in recent years. Prosecutors are going after folks for everything you can imagine. In one famous example, retired race car driver Bobby Unser was prosecuted by the feds for driving his snowmobile on protected federal land. Unser had gotten lost during a snowstorm and was seeking shelter. Closer to home, members of a religious outreach group were arrested and prosecuted for feeding the homeless in a Fort Lauderdale park because they violated a food sharing law.

Because our trial system has turned almost exclusively into a system of pleas (97% of cases resolve by way of plea agreement), one might think that all of these prosecutions must be justified. That could not be further from the truth. The system has made the risks of trial so daunting—with a defendant likely to receive a sentence many times longer if he has the audacity to declare his innocence and proceed to trial—that most defendants fall on the sword and plead guilty, even if they are innocent.