Glenn Reynolds: “Ham Sandwich Nation: Due Process When Everything is a Crime”

Glenn Reynolds has a terrific, and very short, paper on SSRN on Ham Sandwich Nation: Due Process When Everything is a Crime, which I highly recommend.  (Conor Friedersdorf blogs about it here.)   Here is the key passage that summarizes the problem:

Overcriminalization has thus left us in a peculiar place: Though people suspected of a crime have extensive due process rights in dealing with the police, and people charged with a crime have even more extensive due process rights in court, the actual decision whether or not to charge a person with a crime is almost completely unconstrained. Yet, because of overcharging and plea bargains, that decision is probably the single most important event in the chain of criminal procedure.

He then offers a number of tentative suggestions on how to address this problem, which Friedersdorf summarizes as follows:

  • Rather than granting prosecutors absolute immunity against lawsuits, shift to a “qualified, good-faith immunity for prosecutors” — in other words, make them personally liable in instance when they aren’t carrying out their duties in good faith.
  • If a personal is charged with a crime and acquitted, make the prosecution pay their legal bill. Or if there are multiple crimes being adjudicated, “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.”
  •  Ban plea bargains all together, so that every criminal charge filed would have to be backed up in open court.
  • Alternatively, “we might require that the prosecution’s plea offers be presented to a jury or judge before sentencing. Jurors might then wonder why they are being asked to sentence a defendant to 20 years without parole when the prosecution was willing to settle for 5. 15 years in jail seems a rather stiff punishment for making the state undergo the bother of a trial.”
  • Consider whether regulatory violations should be subject to criminal sanctions at all.

Friedersdorf also notes reform proposals by Orin and by Radley Balko. As a former Chicago prosecutor myself (and the father of a Brooklyn prosecutor) I don’t think prosecutors are bad guys.  But I do think they respond to the incentive structure of the system in which they work.  Glenn’s first two proposals remind me of my first law review article as a law professor in the Emory Law Review (not available online) in which I proposed altering the incentive structure for unconstitutional police behavior by replacing exclusion of evidence with a court of claims-type system to administer fines against the department.  Something similar could work with DA’s offices who, to protect their budget, will then control line DA’s. But the Number One problem identified by Glenn and Radley Balko is overcriminalization.  See also Gene Healy’s Go Directly To Jail: The Criminalization of Almost Everything, and Harvey Silverglate’s Three Felonies A Day. As Glenn notes:

The result of overcriminalization is that prosecutors no longer need to wait for obvious signs of a crime. Instead of finding Professor Plum dead in the conservatory and launching an investigation, authorities can instead start an investigation of Colonel Mustard as soon as someone has suggested he is a shady character. And since . . . everyone is a criminal if prosecutors look hard enough, they’re guaranteed to find something eventually.

Something needs to be done about this.  You can start by downloading Glenn’s short paper here.

UPDATE:  For another take on overcriminalization Judge Alex Kozinski and (my former student) Misha Tseytlin, see their essay, You’re (Probably) a Federal Criminal.  (Go to page 43 of this Google Books preview).