Due Process When Everything is a Crime

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2203713

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.

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.10  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.  To further discipline the process, we might pro‐rate things:  Charge a defendant with 20 offenses, but convict on only one, and the prosecution must bear 95% of the defendant’s legal fees.  This would certainly discourage overcharging.