What does "due process" mean when everything is a crime?

Glenn Reynolds short draft paper on the intersection of due process and the criminalization of practically everything is well worth reading. In a nutshell, what does it mean that we provide massive procedural protections to criminal defendants, but there is virtually no review of the decisions by prosecutors to indict in the first place? This is an extremely important question for any executive or director of a business of any size.

The topic reminds the libertarians among us of this famous quotation from an even more famous novel.

“Did you really think that we want those laws to be observed?” said Dr. Ferris. “We want them broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against – then you’ll know that this is not the age for beautiful gestures. We’re after power and we mean it. You fellows were pikers, but we know the real trick, and you’d better get wise to it. There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now, that’s the system, Mr. Rearden, that’s the game, and once you understand it, you’ll be much easier to deal with.”

Some of the recent settlements negotiated between the government and big businesses suggest that we are headed in that direction.

UPDATE: Much more here, also worth reading.