Can due process exist in a system that criminalizes so much?
posted at 12:33 pm on January 21, 2013 by Ed Morrissey
That’s the question Glenn “Instapundit” Reynolds asks in an academic paper, available for download to the public. Glenn uses the recent example of non-prosecution for David Gregory to point out the arbitrary nature of federal prosecutions in a system where it seems everyone might be a criminal, if we just look closely enough:
Two recent events have brought more attention to this problem. One involves the decision not to charge NBC anchor David Gregory with weapons-‐ law violations bearing a potential year-long sentence for brandishing a 30-round magazine (illegal in D.C.), despite the prosecutor’s statement that the on-air violation was clear; the other involves prosecutors’ rather enthusiastic efforts to prosecute Reddit founder Aaron Swartz for downloading academic journal articles from a closed database, prosecutorial efforts so enthusiastic that Swartz committed suicide in the face of a potential 50-‐year sentence.4
Both cases have aroused criticism, and in Swartz’s case even legislation designed to ensure that violating websites’ terms cannot be prosecuted as a crime.5 But the problem is much broader. Given the vast web of legislation and regulation that exists today, virtually any American is at risk of prosecution should a prosecutor decide that they are, in Jackson’s words, a person “he should get.”
Unfortunately, the Swartz case is more typical, and more damaging. The proliferation of laws has placed broad swaths of the public in jeopardy of breaking them without even knowing they exist. Glenn’s article is brief and interesting, and offers some solutions to the problem of perpetually expanding statutes and the abuse it brings. For instance:
Traditionally, of course, the grand jury was seen as the major bar to prosecutorial overreaching. The effectiveness of this approach may be seen in the longstanding aphorism that a good prosecutor can persuade a grand jury to indict a ham sandwich. Grand jury reforms – where grand juries still exist – might encourage grand jurors to exercise more skepticism, and educate them more. But grand juries are not constitutionally guaranteed at the state level, and reforming them at the federal level is iffy.
Overall, the problem stems from a dynamic in which those charged with crimes have a lot at risk, while those doing the charging have very little skin in the game. One source of imbalance is prosecutorial immunity. The absolute immunity of prosecutors – like the absolute immunity of judges – is a judicial invention, a species of judicial activism that gets less attention than many other less egregious examples. Although such immunity no doubt prevents significant mischief, it also enables significant mischief by eliminating one major avenue of accountability. Even a shift to qualified, good-‐faith immunity for prosecutors would change the calculus significantly.
Another remedy might be a “loser pays” rule for criminal defense costs. After all, when a person is charged with a crime, the defense – for which non-‐ indigent defendants bear the cost – is an integral part of the criminal justice process.10 For guilty defendants, one might view this cost as part of the punishment. But for those found not guilty, it looks more like a taking: Spend this money in the public interest, to support a public endeavor, or go to jail. To further discipline the process, we might pro-‐rate things: Charge a defendant with 20 offenses, but convict on only one, and the prosecution must bear 95% of the defendant’s legal fees. This would certainly discourage overcharging.
Be sure to read it all.