Ham Sandwich Nation: Due Process When Everything Is a Crime
Introduction
Prosecutorial discretion poses an increasing threat to justice. The
threat has in fact grown more severe to the point of becoming a due
process issue. Two recent events have brought more attention to this
problem. One involves the decision not to charge NBC anchor David
Gregory with violating gun laws. In Washington D.C., brandishing a
thirty-round magazine is illegal and can result in a yearlong sentence.
Nonetheless, the prosecutor refused to charge Gregory despite stating
that the on-air violation was clear.
1 The
other event involves the government’s rather enthusiastic efforts to
prosecute Reddit founder Aaron Swartz for downloading academic journal
articles from a closed database. Authorities prosecuted Swartz so
vigorously that he committed suicide in the face of a potential
fifty-year sentence.
2
Both cases have aroused criticism. In Swartz’s case, a congresswoman has
even proposed legislation designed to ensure that violating a website’s
terms cannot be prosecuted as a crime.
3 But
the problem is much broader. Given the vast web of legislation and
regulation that exists today, virtually any American bears the risk of
being targeted for prosecution.
I. The Problem with Prosecutorial Discretion
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.”
4 This
method results in “[t]he most dangerous power of the prosecutor: that
he will pick people he thinks he should get, rather than pick cases that
need to be prosecuted.”
5 Prosecutors
could easily fall prey to the temptation of “picking the man, and then
searching the law books . . . to pin some offense on him.”
6 In
short, prosecutors’ discretion to charge—or not to charge—individuals
with crimes is a tremendous power, amplified by the large number of laws
on the books.
Prosecutors themselves understand just how much discretion they
enjoy. As Tim Wu recounted in 2007, a popular game in the U.S.
Attorney’s Office for the Southern District of New York was to name a
famous person—Mother Teresa, or John Lennon—and decide how he or she
could be prosecuted:
It would then be up to the junior prosecutors to figure
out a plausible crime for which to indict him or her. The crimes were
not usually rape, murder, or other crimes you’d see on Law & Order
but rather the incredibly broad yet obscure crimes that populate the
U.S. Code like a kind of jurisprudential minefield: Crimes like “false
statements” (a felony, up to five years), “obstructing the mails” (five
years), or “false pretenses on the high seas” (also five years). 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.”7
With so many more federal laws and regulations than were present in Jackson’s day,
8 a
prosecutor’s task of first choosing a possible target and then pinning
the crime on him or her has become much easier. If prosecutors were not
motivated by politics, revenge, or other improper motives, the risk of
improper prosecution would not be particularly severe. However, such
motivations do, in fact, encourage prosecutors to pursue certain
individuals, like the gadfly Aaron Swartz, while letting others off the
hook—as in the case of Gregory, a popular newscaster generally
supportive of the current administration.
This problem has been discussed at length in Gene Healy’s
Go Directly to Jail: The Criminalization of Almost Everything9 and Harvey Silverglate’s
Three Felonies a Day.
10 The
upshot of both books is that the proliferation of federal criminal
statutes and regulations has reached the point where virtually every
citizen, knowingly or not (usually not) is potentially at risk for
prosecution. That assertion is undoubtedly true, and the consequences
are drastic and troubling.
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 the game Wu
describes illustrates, everyone is a criminal if prosecutors look hard
enough, they are guaranteed to find something eventually.
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 of whether or
not to charge a person with a crime is almost completely unconstrained.
Yet, because of overcharging and plea bargains, the decision to
prosecute is probably the single most important event in the chain of
criminal procedure.
II. Checks on Prosecutorial Discretion
Despite the problems described above, most of us remain safe.
Prosecutors have limited resource and there are political constraints on
egregious overreaching.
11 And
presumably, most of the time prosecutors can be expected to exercise
their discretion soundly. Unfortunately, these limitations on
prosecutorial power are likely to be least effective where prosecutors
act inappropriately because of politics or prejudice. Limited resources
or not, a prosecutor who is anxious to go after a political enemy will
always find sufficient staff to bring charges, and political constraints
are least effective where a prosecutor is playing to public passions or
hysteria.
12
Once charged with a crime, defendants are in a tough position. First,
they must bear the costs of a defense, assuming they are not indigent.
Second, even if they consider themselves entirely innocent, they will
face strong pressure to accept a plea bargain—pressure made worse by the
modern tendency of prosecutors to overcharge with extensive
“kitchen-sink” indictments: Prosecutors count on the fact that when a
defendant faces a hundred felony charges, the prospect that a jury might
go along with even one of them will be enough to make a plea deal look
attractive. Then, of course, there are the reputational damages
involved, which may be of greatest importance precisely in cases where
political motivations might be in play. Worse, prosecutors have no
countervailing incentives not to overcharge. A defendant who makes the
wrong choice will wind up in jail; a prosecutor who charges improperly
will suffer little, if any, adverse consequence beyond a poor win/loss
record. Prosecutors are even absolutely immune from lawsuits over
misconduct in their prosecutorial capacity.
13
III. Better Approaches to Prosecutorial Accountability
So how to respond? Although this brief Essay cannot begin to address
all of the possibilities, it can serve as the beginning of a much-needed
discussion. As this Essay indicates, the decision to charge a person
criminally should itself undergo some degree of due process scrutiny.
Short of constitutional due process scrutiny, however, it is time to
look at structural changes in the criminal justice system that will more
successfully deter prosecutorial abuse.
Traditionally, of course, the grand jury was seen as the major bar to prosecutorial overreaching.
14 The
effectiveness of this approach may be seen in the longstanding aphorism
that a good prosecutor can persuade a grand jury to indict a ham
sandwich.
15 Grand
jury reforms—where grand juries still exist—might encourage grand
jurors to exercise more skepticism and educate them more.
16 But
grand juries are not constitutionally guaranteed at the state level,
and reforming them at the federal level is likely to prove difficult.
Overall, the problem stems from a dynamic in which those charged with
crimes have a lot at risk, while those doing the charging have very
little “skin in the game.” One source of imbalance is prosecutorial
immunity. The absolute immunity of prosecutors—like the absolute
immunity of judges—is a judicial invention, a species of judicial
activism that gets less attention than many other less egregious
examples. Although such immunity no doubt prevents significant mischief,
it also enables significant mischief by eliminating one major avenue of
accountability. Even a shift to qualified, good faith immunity for
prosecutors would change the calculus significantly, making subsequent
review something that is at least possible.
Another remedy might be a “loser pays” rule for criminal defense
costs. After all, when a person is charged with a crime, the defense—for
which non-indigent defendants bear the cost—is an integral part of the
criminal justice process.
17 For
guilty defendants, one might view this cost as part of the punishment.
But for those found not guilty, it looks more like a taking: Spend this
money in the public interest to support a public endeavor, or go to
jail. Perhaps the prosecution could be required to pay a defendant’s
legal fees if he or she is not convicted. To further discipline the
process, one could implement a pro-rate system: Charge a defendant with
twenty offenses, but convict on only one, and the prosecution must bear
95% of the defendant’s legal fees. This would certainly discourage
overcharging.
The “nuclear option” of prosecutorial accountability would involve
banning plea bargains. An understanding that every criminal charge filed
would have to be either backed up in open court or ignominiously
dropped would significantly reduce the incentive to overcharge. It would
also drastically reduce the number of criminal convictions achieved by
our justice system. But given that America is a world leader in
incarceration, it is fair to suggest that this might be not a bug, but a
feature.
18 Our
criminal justice system, as presently practiced, is basically a plea
bargain system with actual trials of guilt or innocence a bit of showy
froth floating on top.
19
A less dramatic option might be to require that the prosecution’s
plea offers be presented to a jury or judge after a conviction, before
sentencing. Judges or jurors might then wonder why they are being asked
to sentence a defendant to twenty years without parole when the
prosecution was willing to settle for five. Fifteen years in jail seems a
rather stiff punishment for making the state undergo the bother of a
trial.
It is also worth considering whether mere regulatory violations—malum
prohibitum rather than malum in se—should bear criminal sanctions at
all. Traditionally, of course, citizens have been expected to know the
law. Yet traditionally, regulatory crimes usually applied only to
citizens in specialty occupations, who might be expected to be familiar
with applicable regulatory law. Ordinary citizens needed no special
knowledge to avoid committing rape, robbery, theft, etc. But now, with
the explosion of regulatory law, every citizen is at risk of criminal
prosecution for crimes that, as David Gregory’s defenders noted,
20 involve
no actual harm or ill intent. Yet any reasonable observer would have to
conclude that actual knowledge of all applicable criminal laws and
regulations is impossible, especially when those regulations frequently
depart from any intuitive sense of what “ought” to be legal or illegal.
Perhaps placing citizens at risk in this regard constitutes a due
process violation; expecting people to do (or know) the impossible
certainly sounds like one.
Support for this notion comes from Court of Appeals Judge John R.
Brown, who wrote, in a 1965 case holding that a prosecutor could refuse
to sign a grand jury’s indictment, that such a refusal was justified by
the complexities of modern criminal law:
Putting aside these factors which bear on the delicate
nature of governmental decisions, there are technical reasons indigenous
to criminal law which are equally compelling. Federal crimes are more
and more for violation of highly complex statutes. Federal jurisdiction,
indeed, whether the activity constitutes a federal crime, depend on
intricate facts, many beyond the knowledge and experience of laymen
composing the Grand Jury.21
This naked admission that federal criminal law is so complex that a
grand jury cannot be expected to understand it carries two lessons:
First, it seems optimistic to expect grand juries to provide an adequate
check on prosecutorial overreaching; and second, if a federal grand
jury cannot be expected to understand the complexities of federal
criminal law, it seems utterly absurd to maintain the fiction that
ordinary citizens should be presumed to know the law.
That being the case, it seems to me that the problem here is a real
one. If we care about due process—and we should—we should be deeply
concerned about a system in which official discretion reigns almost
unfettered where constraint matters most.
*
Beauchamp Brogan Distinguished Professor of Law, University of
Tennessee. J.D., Yale Law School, 1985. Thanks to Leigh Outten for
excellent research assistance.
1Peter Hermann, David Gregory Won’t Be Charged, Wash. Post: Post Politics (Jan. 11, 2013, 4:44 pm),
http://www.washingtonpost.com/blogs/post-politics/wp/2013/01/11/david-gregory-wont-be-charged/ (on file with the
Columbia Law Review);
see also Letter from Irvin B. Nathan, Att’y Gen. of the District of
Columbia, to Lee Levine, Att’y, Levine Sullivan Koch & Schulz, LLP
(Jan. 11, 2013), available at
http://www.docstoc.com/docs/141426869/DC-Attorney-General-Letter-Declining-to-Prosecute-David-Gregory (on file with the
Columbia Law Review) (declining to prosecute David Gregory).
3The
relevant legislation was introduced by Representative Zoe Lofgren
(D-Cal.). Lawrence Lessig, Aaron’s Law: Violating a Site’s Terms of
Service Should Not Land You in Jail, Atlantic (Jan. 16, 2013, 4:38 pm),
http://www.theatlantic.com/national/archive/13/01/aarons-law/267247/# (on file with the
Columbia Law Review).
For criticism of the Gregory decision, see David French, David Gregory
and the Decline of the Rule of Law, Nat’l Rev. Online (Jan. 15, 2013,
10:12 am),
http://www.nationalreview.com/corner/337702/david-gregory-and-decline-rule-law-david-french (on file with the
Columbia Law Review)
(“Can we even speak of the rule of law as a meaningful concept when we
combine an explosive regulatory state with near-absolute prosecutorial
discretion?”).
4Harvey Silverglate, Three Felonies a Day: How the Feds Target the Innocent, at xxxvi (2011) (quoting Justice Jackson).
8How many crimes are there now? Too many:
There are now more than 4,000 federal crimes, an increase
of one-third since 1980. Many of those crimes, spread out through some
27,000 pages of the U.S. Code, incorporate violations of federal
regulations that are in turn spread throughout the tens of thousands of
pages of the Code of Federal Regulations. As a result, even teams of legal researchers—let alone ordinary citizens—cannot reliably ascertain what federal law prohibits.
Gene Healy, Go Directly to Jail: The Criminalization of Almost Everything, at vii (2004).
10Silverglate, supra note 5.
11State
prosecutors are often elected and thus subject to direct political
constraint. But even federal prosecutors are subject to supervision by
the Attorney General or the President, who must take account of public
reaction. After Aaron Swartz’s suicide, for example, Justice Department
officials were called to explain his prosecution before Congress. Ryan
J. Reilly, DOJ to Brief Congress on Aaron Swartz Prosecution, Huffington
Post: Politics (Feb. 15, 2013, 12:12 pm),
http://www.huffingtonpost.com/2013/02/15/aaron-swartz-prosecution_n_2695356.html (on file with the
Columbia Law Review).
12Reportedly,
Aaron Swartz was prosecuted so vigorously because of Justice Department
unhappiness with his copyright activism and “Open Access Manifesto.”
Ryan J. Reilly, Aaron Swartz Prosecutors Weighed ‘Guerilla’ Manifesto,
Justice Official Tells Congressional Committee, Huffington Post:
Politics (Feb. 22, 2013, 1:28 pm),
http://www.huffingtonpost.com/2013/02/22/aaron-swartz-prosecutors_n_2735675.html (on file with the
Columbia Law Review).
Senator John Cornyn (R-Tex.) suggested that anger over Freedom of
Information Act requests filed by Swartz may have contributed to his
prosecution. Stephen Dinan, Top Senator Scolds Holder over Reddit
Founder’s Suicide, Wash. Times: Inside Politics (Jan. 18, 2013, 12:18
pm),
http://www.washingtontimes.com/blog/inside-politics/2013/jan/18/top-senator-scolds-holder-over-reddit-founders-sui/ (on file with the
Columbia Law Review).
13See generally David Keenan et al., The Myth of Prosecutorial Accountability After
Connick v. Thompson:
Why Existing Professional Responsibility Measures Cannot Protect
Against Prosecutorial Misconduct, 121 Yale L.J. Online 203, 209–20
(2011),
http://yalelawjournal.org/2011/10/25/keenan.html (on file with the
Columbia Law Review) (discussing prosecutorial immunity).
14See,
e.g., United States v. Cox, 342 F.2d 167, 170 (5th Cir. 1965) (“The
constitutional requirement . . . of an indictment . . . has for its
primary purpose the protection of the individual from jeopardy except on
a finding of probable cause by a group of his fellow citizens, and is
designed to afford a safeguard against oppressive actions of the
prosecutor or a court.”).
16Grand jurors might, for example, be given extensive training, or be given counsel and investigators of their own.
17See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 543–45 (2001) (stressing role of attorneys in administration of justice).
20Howard Kurtz, David Gregory, Piers Morgan Under Assault over Guns, Daily Download (Dec. 26, 2012),
http://daily-download.com/david-gregory-piers-morgan-assault-guns/#.UNr0lpOeoB8.twitter (on file with the
Columbia Law Review).
For other examples in the same vein, see Katie Glueck, Media Disdain
for the David Gregory Story, Politico (Dec. 26, 2012, 10:44 pm),
http://www.politico.com/blogs/media/2012/12/disdain-for-the-david-gregory-story-152840.html (on file with the
Columbia Law Review).
21United States v. Cox, 342 F.2d 167, 182–85 (5th Cir. 1965) (Brown, J., concurring).
Preferred Citation: Glenn Harlan Reynolds,
Ham Sandwich Nation: Due Process When Everything Is a Crime, 113
Colum. L. Rev. Sidebar 102 (2013), http://www.columbialawreview.org/ham-sandwich-nation_Reynolds.