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.
"Ham Sandwich Nation: Due Process When Everything is a Crime"
- Bond v. U.S.
- A Poster Child for Overcriminalization: The History of the Lacey Act
- Opposing FCPA Overcriminalization
- The Detrimental Effects of Extreme Deterrence
- Debate Concludes: The need for a reasonable mistake of law defense
- Reply: Never underestimate a defense lawyer's imagination
- A Debate: The need for a reasonable mistake of law defense
- Follow the debate: Overcriminalization is a problem, but a 'mistake of law defense' is not the right solution
- New Featured Discussion: Reconsidering the 'mistake of law defense' in the battle against overcriminalization
- Teen Sexting, Youthful Mistake or Felony?
- New Podcast: Federal overcriminalization hurts Ohioans
- Illinois, Chicago treats small businesses like they're a problem
- A better solution to prison overcrowding
- Whose Intent is it Anyway? The Case for State Flexibility in Criminal Law
- Recklessly Jailing Bankers