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The Open File reported on a study series by the Vera Institute of Justice which considered the factors and external pressures which influence prosecutors’ decision-making, including whether and how to prosecute cases.

Last month, Professor Glenn Reynolds of the University of Tennessee released a paper, Ham Sandwich Nation: Due Process When Everything is a Crime, where he argues that an over-reliance on criminalization combined with broad discretionary powers enjoyed by prosecutors with little accountability has created a dangerous milieu in which, “any American is at risk of prosecution should a prosecutor decide that they are… a person ‘he should get.'”

Citing a Yale Law Journal article, “The Myth of Prosecutorial Accountability After Connick v. Thompson; Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct” that outlines the failure of state bar disciplinary authorities to police prosecutorial misconduct (available on our Research page), Reynolds points to lack of accountability as the reason that prosecutors can pursue unconstitutional prosecutions without reservation.

He points to overcriminalization as the problem underpinning the current state of prosecutorial discretion in this country.

“…the proliferation of federal criminal statutes and regulations has reached the point that virtually every citizen, knowingly or not (usually not) is potentially at risk for prosecution.”

Reynolds argues that with a smorgasbord of laws to enforce against people and very few limitations to their discretion (with the exception of resource and political constraints), prosecutors can choose who they want to charge first and worry about what they will charge them with second.

To support his argument, Reynolds cites the case of Reddit founder Aaron Swartz, who committed suicide in January as his trial loomed for allegedly stealing millions of journal articles from an online archive. Swartz  faced a 35 year prison sentence upon conviction.

Reynolds emphasizes that the consequences for citizens who are the subject of charges by prosecutors in this situation are “drastic and troubling.” He points to costs of defense, damage to reputation, incentive to plea when innocent, and a number of other troubling effects that follow unfounded criminal charges. Reynolds concludes that, in contrast to what the citizen stands to lose, prosecutors have little to fear in terms of repercussions.

“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.”

The Yale Law Journal article by David Keenan, Deborah Jane Cooper, David Lebowitz and Tamar Lerer provides a series of recommendations for enhancing the effectiveness of accountability and disciplinary measures. The authors conclude:

“…the ethics rules governing prosecutorial behavior need to be expanded and strengthened, and the disciplinary procedures tasked with enforcing them reformed, if our legal system is to justifiably rely on professional sanctions to deter prosecutorial misconduct.”

Read the journal article here.

View our Accountability page here.

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