October 6, 2009

THE CRIMINALIZATION OF EVERYONE AND EVERYTHING: With the proliferation of criminal law, everyone is a criminal of some sort, whether they know it or not. That means that the most important decision is the decision whether to prosecute. But while we’ve larded criminal procedure with due process, the decision to prosecute — or not — is almost entirely discretionary on the part of prosecutors. We either need to cut back on the criminalization (my first choice) or start cabining prosecutorial discretion.

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