Legal Thinking

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.

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100 responses to “Instapundit on Our "Ham Sandwich" Legal System [Updated!]

  1. Oh, come on! How many times do we have to go through this? Everyone together:

    “You don’t have anything to worry about if you’ve done nothing wrong.”

    Geez! We know you love teh crimunulz, Reason! You don’t need to remind us even moar!

    1. Also, Fist?

      1. OT: That looks like a baloney sandwich.

        1. If it’s ham, it’s very homogenous ham…

          1. Homo Genius Ham – the title of my next album

            no homo

            1. Trying to picture the album cover…

              1. two same-sex pigs with glasses copulating in front of a blackboard with physics equations?

            2. I’m no hamophobe.

          2. It’s processed ham slices. The edges are browner, bologna edge has the same color as the cross-section. (It is must apparent in the background sandwich.)

            1. You worked in a deli, didn’t you? Is “Subway Sandwich Artiste” on you CV?

              1. I just know my meat, Doctor.

                1. Too easy…

                2. I just know my meat, Doctor.

                  He has a good grasp of the subject.

          3. It’s pressed ham and bologna on the sammich in front. Note that you can see where the casing is missing from some of the slices but there is an edge on a couple of the other slices? The sammich in the back looks like a smoked turkey and ham (with swiss cheese) based on the coloration and the edge. The meat on the cutting board looks like a smoked ham, but is not the same one on the sammich in the back.

    2. Geez! We know you love teh crimunulz, Reason! You don’t need to remind us even moar!

      Needs moar “cosmotarian” and “cocktail parties”.

  2. I’m sure I’ve probably done lots of illegal things, just no criminal things.

  3. I can’t piss in the woods anymore for fear of creating a wetland.


      Cite that man for being a Sexual Predator! He exposed himself to the woodland creatures.

      1. STEVE SMITH is a woodland creature…maybe Tim has suicidal tendencies.

        1. You raise a very good point.

          1. If there is only one STEVE SMITH, is them an Endangered (or Engendered) Species?

        2. Even STEVE knows the difference between a moody swamp and a puddle of piss.

  4. A vaguely competent prosecutor can get an indictment on a ham sandwich.

    Really? Doesn’t ham come from pigs? How often are pigs indicted?

    1. Only when it’s pig on pig crime.

      1. So like “Magnum Force”?

    2. Uh be-be, uh be-be, uh be-beats…be-beats m-me

    3. Not often. They have a union.

      1. This union – are there meetings?

        1. Yeah, but I wouldn’t go. The place is a sty.

        2. I love that movie, for some reason.

  5. Prosecutorial discretion seems a very ripe place to fix some of the bad outcomes of our legal system, however so long as we ignore research showing consistent biases in human thinking and therefore don’t look to jury reform, I think we’re only adding on more complexity to fix the prior set of complex issues which was used to fix the prior….

    Simply put: I believe so long as the jury remains beyond reproach as part of the legal system, we will continue to see unpalatable outcomes.

    1. Leave the jury alone. End sovereign immunity for prosecutors.

    2. What is your alternative to a jury?

      1. Trial by combat?

        1. And execution of the winning lawyer.

      2. I don’t know that it would be alternate – maybe a jury system with some additional controls?

        I’m not sure, still contemplating it and likely will for months… but let’s just use a recent Reason post which showed attractive women and unattractive women having differences in sentencing and convictions.

        Most here correctly thought “yeah – that makes sense”.

        The current legal system, doesn’t even attempt to take this obvious human bias into account and it’s a small one.

        Better biases are when a defendant is charged with 18 counts of child molestation and the average juror thinks “well, maybe he didn’t do them all, but if charged with 18, he must’ve done…”.

        And let’s not start on group think…

        Just put together what we know about human decision making and ask if the legal system which holds jury as the absolute finder of fact tries to mitigate any of these known problems?

        On the alternate – sorry, I do really wish I had some idea – tired of talking about this without one.

        Some day maybe 🙂

        Though with the complexities involved… maybe never.

        Maybe all I can offer here is the right question?

    3. Someone needs to draw up an engineering control block diagram for our legal system. There are so many open loops where there is no accountability to hold abuses in check, and so many undesirable feedback loops that it would take a very very long time thiugh. Same goes for our political system, which is tied too closely to the legal system.

  6. When Reynolds released the paper, it was timed nicely to my 7th grade daughters project on “Animal Farm”.
    She had to take the school handbook and change 3 rules to make it so some kids are more equal than others, and then she had to write an essay on how rules and laws in real life do not apply equally to all.
    The essay almost writes itself.

    1. What kind of an out of the mainstream school does she go to? I can’t believe your typical brain dead ed major would ever come up with such a project. Wow.

      1. I am assuming that it’s not a public school.

        1. it is an independent school, but it is surprising how several of the teachers over the last few years have been working what I consider libertarian ideas into the curriculum.

          Her current teacher is pretty good. also the closest I’ve yet found to a hawt vegan.

          1. I dated a hot vegan once. She was skinny with long legs and big boobs. It was worth giving up meat for a few months trust me.

            1. It might be worth giving up meat, but no matter how hot she is, she isnt worth giving up cheese.

              1. True. And I totally ate meat and cheese when she wasn’t around.

                1. And if you were having sex without a condom (like a real man does!), you were actually defiling the most sacred part of her vegan temple with your meat-fueled jizm.

                  This could be an episode if there were any funny TV shows still around. Without showing the jizm, of course.

                  1. Oh I defiled her alright.

                    1. Looking back on my comment, I don’t think it will make Ken Schultz happy.

            2. The first few months that I dated my first wife, I did the same. Good Cthulu even I was a putz who would do anything to please a woman when I was young. When I advise young guys to stop doing that I’m only speaking from experience.

        2. There are some good public school. I was actually first introduced to Ayn Rand when we read The Fountainhead in High School English at mine.

    2. She had to take the school handbook and change 3 rules to make it so some kids are more equal than others

      I hope there was extra credit if she could show how that was already the case without changing any rules.

      1. Yes, the uniform rules, as actually enforced, allow much more flexibility for the girls than boys, and she pointed that out.

  7. And if you don’t show remorse and contrition…

    1. If you show remorse then you’re guilty, if you don’t then you’re a monster.

      After all, prosecutors do not waste government resources on innocent people.

  8. 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.

    And, of course, bury them in a lot of scary charges which carry lots and lots of prison time in order to terrorize them into a plea bargain.

  9. The suggestions are nice, but they miss the main incentive: prosecutors are overzealous because high-profile convinctions mean promotions and publicity for electoral runs. It’s no secret that the Attorney General office is a great platform to run for Governor, and no secret that most US Attorneys are hoping for promotions and judgeships.

    Simple reform: no prosecutor can be appointed to the bench or run for elected office without spending an equal amount of time/cases/whatever in defense.

    1. Simple reform: Cardassian legal system. The prosecutor and the defender are the same lawyer, presenting both sides. He represents truth, instead of it being adversarial.

      In theory, it could work, but I do see some flaws.

      1. My reform is that the office of the prosecutor and the public defender are one and the same, and the attorneys are assigned to cases randomly.

        They’ll spend as much time defending as prosecuting, each side will have equal quality representation and resources, and the cozy “we’re all on the same side” culture with the cops will be vaporized.

        1. That is difficult to do. You don’t do one case at a time. You do hundreds at a time. Also, many cases are related and you would be conflicted out of defending other defendants.

          You would have to have a rotational system where each attorney spent say two years before moving to the other side, which is what the military does and it works just fine.

        2. And I know from experience, having worked both sides is not a fool proof way of keeping people from being assholes. Some people are just assholes and would put in their time doing icky defense work only to return to their natural home of destroying people’s life for the government.

        3. Don’t get me wrong. It would help break up the mentality that doing prosecution is doing God’s work and that every defendant is guilty and the longer they spend in prison the better. But it wouldn’t totally fix it.

          1. “Doin’ right ain’t got no end.”

    2. There is some truth to that. Combine the US attorney and the federal public defenders into one joint office with separate leadership. Make every prosecutor do equal time in the defenders office.

      The danger would be the former prosecutors would not provide a zealous defense. But you could get around that by vigorously pursuing ineffective assistance of council claims and bar complaints for such.

      1. Give them better incentives for successful defenses than for prosecutions.

  10. Ham is the most overrated meat. It’s just a way to make use of the waste products from creating bacon.

    1. Clearly you have never had good ham.

    2. Ham is the most overrated meat.

      I don’t even know a Jew that would say this.

    3. No matter what the douchebags say, I agree. Once you take out the bacon, the ribs, and the chops, the ham is like the leftover meat that someone has to eat.

      1. Have you ever had a good country ham? Ever had prosciutto? The whole pig is pretty much awesome.

        1. Have you ever had a good country ham?

          It’s a little bit funny that you probably don’t see the absurdity of that question.

          To answer your question, I’ve had ham on many, many occasions in many, many different places. I wouldn’t say that in any of those cases I had ham that I thought was anything other than bland pink meat.

          1. If you think prosciutto is bland pink meat, you have either never eaten it or have no taste buds.

            1. you have either never eaten it or have no taste buds.

              Because those are the only two options. *sigh* I wish you had a better argument style, John.

              I actually eat ham quite often, I use diced ham when I make eggs. It adds a bit of bite and some saltiness and that’s where its usefulness ends.

            2. Prosciutto is made from the same cut as bacon.

              1. Don’t interrupt John with facts!

                1. Especially when he is as usual right about them. Fuck off Brandon.

              2. Prosciutto is made from the same cut as bacon.

                Incorrect. Prosciutto is ham, made from the hind legs. You’re thinking of pancetta.

                1. I stand corrected. Being a non-Italian I get some of the words mixed up.

    4. Turkey is, by far, the most overrated meat.

      1. For me, it’s chicken that’s the most overrated. Hams and Turkeys are so versatile when processing, but for some reason chicken doesn’t lend itself to the process.

        Seriously, I can think of a half-dozen different ways to process a turkey and at least 25 ways to process a ham that don’t involve cooking it from raw, and all will result in a different tasting meat. With chicken, you can’t do much with it at all other than cook it from raw. And even then, you have to eat it right away lest it dry quickly.

        1. Good fried chicken lasts a while. And Coque de vin is some pretty good stuff. What is really overrated is white meat chicken.

        2. Chicken Kiev disagrees with you, sloopy.-)

        3. Chicken is what you get from a chicken. If you don’t like chicken, leave the chicken alone. I don’t see any captions here labeling chicken “Delicious.” Ham is bacon waste. It is an edible and occasionally useful piece of meat, but calling it “Delicious” is a drastic overstatement.

          1. Right on, brother! Tell in on the mountain.

      2. Turkey bacon is an abomination unto nature.

        1. Agreed. I have had some turkey bacon that was ok, but never any better than that. And even then I wouldn’t call it bacon. Turkey strips, maybe.

      3. Underrated NATO ally?

    5. Yeah, who wants a ham sandwhich when you could be eating pastrami?

  11. My reform is that the office of the prosecutor and the public defender are one and the same, and the attorneys are assigned to cases randomly.

    I’d take that in a heartbeat.

  12. It should be law for the judge to inform the jury of it’s right to nullify laws.

    1. but then I guess that law could be nullified too. *mind explodes*

      1. How would that be nullified? Nullification is on the jury, not the judge. The only way a jury could nullify that law is by covering their ears and saying “LALALALALALALALALALA” while the judge is informing them of the nullification possibility. And if they did that, it would mean that law was working.

  13. STony: “What is it about ‘The State Owns Your Life’ don’t you understand???”

  14. The reason why it is so easy to get an indictment is that the standard of proof is low, and if a defense lawyer tries to get a win during the grand jury process, but loses, he or she just tipped their defense strategy for the trial to the prosecutor.

    It’s safer to just take the beating and wait for the trial, where the burden of proof for the state is much higher, unless the prosecutor is egregiously making an unsustainable charge.

    1. The rules differ by jurisdiction, but defense lawyers typically can’t be in the grand jury room, ask questions of witnesses, call witnesses, or present other evidence to the grand jury. The most they can do is advise the client on their own testimony, and negotiate with the prosecutor.

  15. You should navigate here if you wanna learn how to write a process essay.

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