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January 30, 2013

"Ham Sandwich Nation: Due Process When Everything is a Crime"

The title of this post is the title of this timely new essay by Glenn Harlan Reynolds now available via SSRN.  Here is 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.

January 30, 2013 at 04:29 PM | Permalink

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Comments

There is good symmetry in this lawyer gotcha universe.

There are enough rules and regulations of the prosecutor to charge any prosecutor with misconduct, to demand a mistrial, and all costs to his personal assets. It has to become standard of due professional care to do total, forensic, e-discovery of all government and personal computers, as a minimum. Why not? Because lawyers learn from legal outcomes. It would deter the prosecution and therefore the employment of the defense bar. One therefore needs two lawyers, a defense attorney, and a lawyer malpractice specialist to terrorize the defense attorney into doing its duty.

Posted by: Supremacy Claus | Feb 1, 2013 7:46:25 AM

The way things are "progressing" with this delightfully lawless and totally unconstitutional administration, we are but a c-hair away from being not just "ham sandwich nation", but "ham sandwich citizenry".

And that's exactly where we want you to be!

Release the hounds!!

Posted by: Charles Montgomery Plantagenet Schicklgruber Burns | Feb 8, 2013 11:47:19 PM

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