Instapundit on Our "Ham Sandwich" Legal System [Updated!]


You know the old line about prosecutors and grand juries, right? A vaguely competent prosecutor can get an indictment on a ham sandwich.

Glenn Reynolds, the Instapundit and Univ. of Tennessee law prof, has a new paper called "Ham Sandwich Nation" Due Process When Everything is a Crime."

Here's the abstract:

Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process—the decision whether to charge a defendant, and with what—is almost entirely discretionary. Given the plethora of criminal laws and regulations in today's society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in. This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.

Read more and download it here.

The Altantic's Conor Friedersdorf discusses the paper and related topics here and libertarian legal eagle Randy Barnett comments on it at the Volokh Conspiracy here.

The short version of it all? When everything is a crime, nobody is safe from the sorts of legal actions (or threats thereof) that choke off freedom of thought and action.

Related: Harvey Silverglate, author the must-read Three Felonies a Day, on "the peril of vague criminal statutes."

Update: "Gideon," the proprietor of the a public defender blog, writes:

The Atlantic piece – and by extension Reynolds' brief – are a listing of the usual bad ideas – make the state pay the legal bills of acquittees, ban plea bargains altogether (NO! BAD DOG!) – thrown in with some good ones.

Read more here.

And Scott H. Greenfield of Simple Justice writes:

The first step in "fixing" overcriminalization is to stop the political aggrandizement that comes with demanding/applauding a new law to solve every ill that appears in the morning paper. We live under the crushing burden of redundant and ill-conceived laws and regulations, and yet the fact that prosecutors use them suddenly shocks us? 

The second step, nowhere to be found in the scholarly fixes, is to expect  judges, who exist to play the role of neutral in the great war, to be, in fact, neutral in their exercise of discretionary authority. Why do we look only to prosecutors to exercise discretion, when they are adversaries in our system? Yes, I'm familiar with Justice Robert H. Jackson's 1940 speech about the exercise of discretion by prosecutors to curb their awesome power, but the goodwill of prosecutors is hardly a basis for a viable criminal justice system. 

We have judges. Has everyone forgotten, or given up? They sit on high benches, well-equipped to toss duplicitous charges, to refuse to enhance sentences merely because a prosecutor smurfs an act into 37 offenses. They have the power of discretion and mercy, and yet no one mentions their duty to be parsimonious? 

More here.