Ham Sandwich Nation: Due Process When Everything is a Crime

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.

Number of Pages in PDF File: 7

Keywords: due process, criminal law, grand jury, plea bargain, overcriminalization, Robert Jackson, Tim Wu, Harvey Silverglate, Gene Healy

working papers series