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."
Source: http://reason.com/blog/2013/01/24/instapundit-on-our-ham-sandwich-legal-sy
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