7 Pages Posted: 20 Jan 2013 Last revised: 11 Apr 2013
Date Written: January 20, 2013
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.
Keywords: due process, criminal law, grand jury, plea bargain, overcriminalization, Robert Jackson, Tim Wu, Harvey Silverglate, Gene Healy
Suggested Citation: Suggested Citation
Reynolds, Glenn Harlan, Ham Sandwich Nation: Due Process When Everything is a Crime (January 20, 2013). University of Tennessee Legal Studies Research Paper No. 206. Available at SSRN: https://ssrn.com/abstract=2203713 or http://dx.doi.org/10.2139/ssrn.2203713