The process by which crimes and other legal wrongs are investigated, prosecuted, judged, and punished or otherwise remediated is surrounded by a dense foliage of rules and customs. The best known are the rules of criminal procedure set forth in the Bill of Rights and other provisions of the federal Constitution, but there are many others; and the informal, extralegal customs that constrain the law-enforcement process are almost as important. For example, law-enforcement officials are not supposed to hate criminals. It is all right for the public to hate them, but the people charged with apprehending, convicting, and punishing them should not. The impersonality, the unemotionality, of law enforcement is a notable advance over justice as revenge, which preceded the modern notion of criminal justice and founders on (among other things) the lack of emotional distance between law enforcer (the avenger) and the criminal.1
Another important custom is the responsible exercise of prosecutorial discretion to protect the population against the felt injustice of the law when it is enforced to the hilt (one of Shakespeare themes in Measure for Measure). The criminal codes of the United States contain thousands of separate prohibitions. Many are either totally obscure (such as the prohibitions against using the coat of arms of Switzerland in advertising2 or using "Smokey the Bear" as a trade name without the authori____________________
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Publication information: Book title: An Affair of State:The Investigation, Impeachment, and Trial of President Clinton. Contributors: Richard A. Posner - Author. Publisher: Harvard University Press. Place of publication: Cambridge, MA. Publication year: 2000. Page number: 59.
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