August 31, 2009
IN THE MAIL: From Harvey Silverglate, Three Felonies a Day: How the Feds Target the Innocent. Some years ago I started on a project entitled Due Process When Everything Is A Crime. The gist was that since criminal law has expanded to the point where everyone is some sort of a felon, the real action is in the area of prosecutorial discretion — in choosing whom to prosecute from among this population-wide mass of the guilty — where, in fact, due process basically doesn’t apply. That suggests that maybe there should be some due-process limits on decisions to prosecute. I never got to it (my scholarly rangetop has so many back burners it must be a half-mile deep) but the issue continues to deserve attention
Along these lines, you might also see Gene Healy’s Go Directly to Jail: The Criminalization of Almost Everything, and Angela Davis’s (no, not that Angela Davis) Arbitrary Justice: The Power of the American Prosecutor. It’s an issue that’s worthy of a lot of attention.