8 Ways to Stop Overzealous Prosecutors From Destroying Lives By Conor Friedersdorf

[Valin]

The Atlantic:

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

Conor Friedersdorf

1/21/13

 

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:

 

(Snip)

 

H/T The Instapundit