Fully Informed Jury Association

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Function of Juries & Jury Nullification | 06 Feb 2013

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


In this recent paper, Glenn Harlan Reynolds discusses the detrimental consequences to individuals’ right to due process of overcriminalization and prosecutorial abuse facilitated by prosecutorial immunity.

Ham Sandwich Nation: Due Process When Everything is a Crime

Given the vast web of legislation and regulation that exists today, virtually any American is at risk of prosecution should a prosecutor decide that they are, in Jackson’s words, a person “he should get.”

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.:

And, once charged with a crime, citizens are in a tough position. First, they must bear the costs of a defense, unless they’re 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: When facing a hundred felony charges, the prospect that a jury might go along with even one of them is enough to make a plea deal look attractive, something that many prosecutors count on. Then, of course, there are the reputational damages involved, which may be of greatest importance precisely in cases where political motivations might be involved. And 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.

Click through for the abstract and a link to download the entire paper for free in .pdf format.

Remember that while prosecutors have discretion regarding who to charge and with what offenses, jurors also hold the power to check abuse of that discretion through their right and ability to refuse to enforce laws that are inherently unfair or are applied unjustly. By re-integrating into our culture the important concept of jurors’ right and responsibility to judge the fairness of the law and its application in the case at hand, and to veto it with a Not Guilty vote if necessary to deliver a just verdict, we can protect our human rights against prosecutorial abuse. Please take time this week to share FIJA’s message with 3 people in your community and let us know how it went!