Perils of Prosecutorial Discretion in a World Where Everyone is a Criminal

University of Tennessee lawprof Glenn Reynolds (AkA “Instapundit”) has an interesting short paper on the dangers of prosecutorial discretion in a world where the scope of criminal law has gotten so vast that almost anyone can be convicted of a crime if the prosecutor goes after them aggressively enough:

Attorney General (and later Supreme Court Justice) Robert Jackson once commented: “If the prosecutor is obliged to choose his cases, it follows he can choose his defendants…..“ Prosecutors could easily fall prey to the temptation of “picking the man and then searching the law books…. to pin some offense on him.” In short, prosecutors’ discretion to charge – or not to charge – individuals with crimes is a tremendous power, amplified by the huge number of laws on the books….

As Tim Wu recounted in 2007, a popular game in the U.S. Attorney’s office in the Southern District of New York was
to name a famous person – Mother Teresa, or John Lennon -­ and decide how they could be prosecuted….:

The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: “prison time….”

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, as Wu’s game illustrates, everyone is a criminal if prosecutors look hard enough, they’re guaranteed to find something eventually.

Glenn goes on to note that, once prosecutors do go after a defendant, they can often force him to plead guilty even if he is innocent of any real wrongdoing simply by “overcharging” him with dozens of different offenses. The strong likelihood that at least one will stick in a jury trial is a powerful incentive to cop a plea.

As Glenn recognizes, most of us are still “safe” from abusive prosecutions because prosecutors simply don’t have the time or the resources to go after everybody. But the combination of overcriminalization and prosecutorial discretion can be a nightmare for people who are unpopular, unsympathetic, or simply run afoul of influential officials.

Various scholars and jurists I have focused on this problem before. I myself blogged about it in this 2009 post, where I referenced earlier commentary by Judge Alex Kozinski and Misha Tseytlin, and Radley Balko. Harvey Silverglate has published an important book on the subject.

But Glenn’s essay is a particularly helpful and concise summary of the problem. He also proposes some potential reforms, including penalizing prosecutors for overcharging and strengthening the role of grand juries as possibly safeguards against abusive prosecutions. This recent Boston Globe article by Leon Neyfakh describes a variety of reforms proposed by Glenn and other scholars, most of them focusing on strengthening the role of juries.

I think some of the reforms discussed in the Neyfakh article have merit, and all at least deserve serious consideration. Increasing the role of juries might help alleviate the problem. But in some cases, it might make things even worse, especially if the defendant is unpopular or otherwise unsympathetic.

Ultimately, the best solution for overcriminalization is to reduce the number of crimes on the books. If we really want to move away from a world where we are all at the mercy of prosecutors, we should move away from a world where we are all criminals. As I discuss here and here, there are numerous places where federal criminal law can be pared back, especially when it comes to the massive War on Drugs. The same is true in many states. Silverglate’s book includes more proposals along these lines, as does this interesting 2004 book edited by Gene Healy. Silverglate summarized some of his ideas in this series of guest-blogging posts right here at the VC.

I also have a modest proposal for attracting public attention to the problem. While the idea is something of a joke, I really do think that it would increase public awareness if the president actually did it:

The last three presidents of the United States are all federal criminals under the drug laws, as are probably the majority of people who went to college in the last 40 years. Kozinski and Tseytlin cite statistics suggesting that nearly half of Americans have taken banned drugs at some point in their lives. The next presidential state of the union address should perhaps begin with “My fellow federal criminals,” instead of the traditional “My fellow Americans.” It would be a great teaching moment!

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