8 Ways to Stop Overzealous Prosecutors From Destroying Lives

Aaron Swartz was mistreated by the criminal-justice system, but no more than the countless less-famous defendants who'd benefit from these reforms.

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Federal prosecutors are facing unusual scrutiny of the tremendous power that they wield after the suicide of Aaron Swartz. The open-Internet activist was threatened with decades in prison if he contested charges that he used MIT's computer network to illegally download millions of academic papers. Senator John Cornyn is pressing for an investigation into whether the U.S. Attorney's Office in Boston inappropriately targeted the 26-year-old Reddit co-founder. Rep. Darrell Issa, chairman of the House Oversight Committee, wants to look into the case too. Said Rep. Zoe Lofgren, "I think the Department of Justice was way out of line on the case."

Perhaps so.

But as legal scholar Orin Kerr points out, the hardball tactics used against Swartz are "business as usual in federal criminal cases around the country -- mostly with defendants who no one has ever heard of and who get locked up for years without anyone much caring." The need for systemic reform to prevent already widespread abuses are what makes a new paper by University of Tennessee Law Professor Glenn Reynolds so timely. Its title, "Ham Sandwich Nation: Due Process When Everything Is a Crime," alludes to a common saying --that a good prosecutor can get a grand jury to indict a ham sandwich. There's truth in that quip, Reynolds argues, and that's problematic: Grand juries are supposed to meaningfully check overzealous prosecutors. "Though people suspected of a crime have extensive due process rights in dealing with the police, and people charged with a crime have even more extensive due process rights in court, the actual decision whether or not to charge a person with a crime is almost completely unconstrained," he writes. "Yet, because of overcharging and plea bargains, that decision is probably the single most important event in the chain of criminal procedure."

How to afford Americans more meaningful due process and protect them against prosecutorial overreach? In the balance of the paper, Reynolds sets forth five possible legal reforms:

  • Rather than granting prosecutors absolute immunity against lawsuits, shift to a "qualified, good-faith immunity for prosecutors" -- in other words, make them personally liable in instance when they aren't carrying out their duties in good faith.
  • If a person is charged with a crime and acquitted, make the prosecution pay their legal bill. Or if there are multiple crimes being adjudicated, "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."
  • Ban plea bargains all together, so that every criminal charge filed would have to be backed up in open court.
  • Alternatively, "we might require that the prosecution's plea offers be presented to a jury or judge before sentencing. Jurors might then wonder why they are being asked to sentence a defendant to 20 years without parole when the prosecution was willing to settle for 5. 15 years in jail seems a rather stiff punishment for making the state undergo the bother of a trial."
  • Consider whether regulatory violations should be subject to criminal sanctions at all.

The paper itself is more detailed, but short enough to read in a few minutes. It is also explicit about soliciting additional reform ideas and inviting debate about the ones summarized in the text.

Kerr has a reform suggestion of his own:

Multiple overlapping crimes gives prosecutors an unfair advantage at trial that in turn pressures defendants unfairly to take a guilty plea. That's the case because the jury is easily misled. When the jury sees a multi-count indictment involving many different crimes, the jurors have two natural reactions. First, they think they can "split the difference" and convict on some but not all. This is just wrong, as it turns out; at sentencing, a conviction as to only one crime is treated just as severely as a conviction as to all crimes. But the jury doesn't know that, giving the prosecution an advantage. Relatedly, the jury likely thinks that the defendant's conduct is extra serious if it is charged under lots of criminal offenses instead of one. The existence of multiple overlapping crimes therefore gives the prosecutors an unfair advantage; the answer is to narrow that advantage by eliminating entirely duplicative crimes.

Radley Balko suggests decreasing the total number of laws:

Every new criminal law gives prosecutors more power. Once we have so many laws that it's likely we're all breaking at least one of them, the prosecutor's job is no longer about enforcing the laws, but about choosing which laws to enforce. It's then a short slide to the next step: Choosing what people need to be made into criminals, then simply picking the laws necessary to make that happen.

And I'd like to add a final reform idea of my own. Would it be useful if prosecutors were forced, once a year or so, to team up with a public defender and help run a case "from the other side"? Incentives are important. But I'm trying to think of a way to change the prosecutorial mindset too.