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The suicide of Internet activist Aaron Swartz, who faced felony charges at the time of his death that could have sent him to prison for 35 years, has provoked an outpouring of debate about the power of government prosecutors. Swartz had been charged with 13 felonies for sneaking into a wiring closet at MIT and using his laptop to download millions of academic articles through the school’s computer network. According to Swartz’s lawyer, the federal prosecutor’s office offered the 26-year-old a deal that would have required him to plead guilty on all counts in exchange for a six-month prison sentence. On Jan. 11, days after rejecting the deal, Swartz took his own life.
Swartz had struggled for years with depression, and it is impossible to know what led him to kill himself. But in the weeks since his death, he has become a rallying point for critics of the criminal justice system who see his story as an object lesson in the excessive power of government prosecutors. By stacking charges as high as possible and wielding the threat of mandatory sentencing laws, the argument goes, prosecutors intimidate defendants and make it all but impossible to turn down their offers.
Prosecutors, even the most conscientious ones, work within a system that is set up to reward toughness, and concerned lawyers, activists, and legal scholars have been calling for more checks on their power for years. But changing the status quo has proven difficult, in large part because voters have repeatedly demonstrated their preference for prosecutors who know how to get convictions swiftly and often.
By now, there have been lots of ideas for how to rein in prosecutorial power. Some have suggested judges should play a bigger role in reviewing charging decisions. Others want to reduce the number of laws on the books, so that people can’t be charged with 13 overlapping crimes when they’ve really just committed one or two. Others still have argued that prosecutors should be forced to reimburse citizens for legal fees when charges end up getting dropped or they’re found not guilty.
But an outspoken group of thinkers has proposed another approach to the problem—one that begins with the observation that fewer than 5 percent of cases brought by American prosecutors every year lead to an actual jury trial, while the rest play out in plea bargains almost entirely behind closed doors. In practice, that means juries have all but vanished from the justice system, replaced by a highly efficient machine that processes cases without ever stopping to consider what seems moral or fair. To rein prosecutors back in, these scholars argue, America should reinstate ordinary citizens to their rightful place in the process, and with them a common-sense vision of fairness.
“The explosion of plea bargaining has really marginalized the role of laypeople,” said Ric Simmons, a professor at the Moritz College of Law at the Ohio State University who specializes in criminal law. “What we want to do in this area is think of ways to introduce...populist participation and a common-sense check into the prosecutors’ decision-making process.”
Simmons and his allies have proposed imaginative new ways in which the judgment of laypeople could help restore balance in the secretive early phases of criminal justice. They call for new kinds of juries or new uses—and new powers—for the ones we already have.
At the heart of their argument is a belief that regular people, with no personal stake in the outcome and an average citizen’s sense of right and wrong, can offer a much-needed counterweight to the professionals tasked with enforcing the letter of the law. But is it naive to think so?
State and federal prosecutors occupy some of the highest-profile seats in American civic life, armed with the power of the law to protect their constituents from criminals and corruption. The prosecutor’s office has been the launching point for countless political careers, including former Massachusetts governor William Weld, newly minted Secretary of State John Kerry, and recently elected Massachusetts Representative Joseph Kennedy III. In 2010, Massachusetts Attorney General Martha Coakley came within an inch of a Senate seat.
In making one’s name as a prosecutor, what tends to matter is winning convictions, and lots of them. The most efficient way to do that is to strike plea bargains and avoid trials, by threatening defendants with potentially devastating prison terms and convincing them to plead guilty to lesser crimes. To critics, this means that the charging process essentially rigs the game against defendants from the outset. Civil libertarians regard this as a dangerous gap in our rights: While the police who investigate and arrest us are bound by strict limits on what they can do, and courts must abide by procedures designed to treat defendants fairly, there are hardly any guidelines in place to protect us during the charging phase. The result—as any “Law & Order” fan knows—is a system where the prosecutor loads up as many charges as possible to force a guilty plea, and moves on to the next case.Continued...