Monday, February 14, 2011
Ellen S. Podgor (Stetson University College of Law) has posted The Tainted Federal Prosecutor in an Overcriminalized Justice System (Washington and Lee Law Review, Vol. 67, No. 4, 2010) on SSRN. Here is the abstract:
The infiltration of politics in the Department of Justice (DOJ) is the discussion in four recent oversight reports. Commentators and scholars have responded with varying solutions to ensure these mistakes will not be repeated.
This Essay looks at politicization in DOJ from a different angle. It focuses first on the importance of maintaining political neutrality in DOJ and then stresses the need to examine structural changes in the criminal justice process that will minimize the ability to have decisions that might be politicized or might suggest an appearance of being politicized. Instead of focusing only on corrections to alleviate politicization in the federal criminal justice system, the focus also needs to look at overcriminalization, the breadth or many criminal statutes, the increased lack of mens rea required in criminal offenses, and the ability of prosecutors to use “short-cut” offenses to proceed with charges with relatively little proof. Conquering systemic problems accruing from an overcriminalized system will assure that decision-making is consistent and not a product of a prosecutor’s personal preferences. Thus, even if politicization should again enter into the DOJ, limited power in decisionmaking would avoid any possible problems that might accrue from the appearance or reality of having politically connected decisionmakers.