The American criminal justice system stands out not only for the severity of its criminal sentencing, but for the incredible leeway it gives to prosecutors. Prosecutors exercise sole discretion over what charges to file against defendants and what deals to cut with them, if any. There are no formal requirements that prosecutors treat like crimes alike, and no rule against a prosecutor singling out one defendant for an extremely severe sentence to 'set an example'.
Although constitutional rules require prosecutors to turn over exonerating evidence to the defense, it is the prosecutor's own prerogative to decide what evidence must be turned over, and what can be kept secret. Not surprisingly, prosecutors often abuse this prerogative and conceal favorable evidence from the defense. If this fact is discovered at all, it may be only after the defendant has spent years in prison, and it often results in no punishment at all for the prosecutor. This is mainly owing to the fact that prosecutors, as government officials, enjoy immunity for actions they take during the course of duty, and this legal protection is nearly impossible to overcome. In 2011, for instance, the United States Supreme Court ruled that a Louisiana prosecutors who confessed to intentionally suppressing blood testing showing a defendant's innocence -- thereby sending him to death row to wait for execution for 14 years -- could not be held liable in a civil court.
But that's not all. Prosecutors can engage in overcharging: threatening defendants with extra crimes despite weak evidence, in order to force them to accept plea bargains. They can also charge defendants with every single act of illegality and seek consecutive sentences, creating the potential for huge punishments. This is also true if all of the violations were only part of one scheme. For instance, if you ran a scam sending out fraudulent letters, the prosecutor can decide to charge you for every single piece of mail the operation sent out, attaching a penalty to each one. So, for example, if you send out 60 fraudulent letters during your scheme, and the maximum sentence for each letter is 5 years in prison, then there is nothing stopping the prosecution from charging you with 60 separate offenses, and asking for a 5-year consecutive sentence on each one, for a total of 300 years in prison. Although this would raise a few eyebrows, and the judge would be likely to impose a much lighter sentence, there's nothing preventing the prosecution from asking for this insane punishment, and judges will often agree to sentence offenders to extremely long consecutive sentences.
The fact that prosecutors are immune from any effective accountability helps to explain the case of Aaron Swartz, the activists who recently committed suicide while facing prosecution for hacking into a database of academic articles. Glenn Greenwald reports:
The Wall Street Journal reported this week that - two days before the 26-year-old activist killed himself on Friday - federal prosecutors again rejected a plea bargain offer from Swartz's lawyers that would have kept him out of prison. They instead demanded that he "would need to plead guilty to every count" and made clear that "the government would insist on prison time". That made a trial on all 15 felony counts - with the threat of a lengthy prison sentence if convicted - a virtual inevitability.
Just three months ago, [prosecutor Carmen] Ortiz's office, as TechDirt reported, severely escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which "carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony", meaning "the sentence could conceivably total 50+ years and [a] fine in the area of $4 million." That meant, as Think Progress documented, that Swartz faced "a more severe prison term than killers, slave dealers and bank robbers".
Swartz's girlfriend, Taren Stinebrickner-Kauffman, told the WSJ that the case had drained all of his money and he could not afford to pay for a trial. At Swartz's funeral in Chicago on Tuesday, his father flatly stated that his son "was killed by the government".
Ortiz and Heymann continue to refuse to speak publicly about what they did in this case - at least officially....
A petition on the White House's website to fire Ortiz quickly exceeded the 25,000 signatures needed to compel a reply, and a similar petition aimed at Heymann has also attracted thousands of signatures, and is likely to gather steam in the wake of revelations that another young hacker committed suicide in 2008 in response to Heymann's pursuit of him (You can [and I hope will] sign both petitions by clicking on those links; the Heymann petition in particular needs more signatures)....
In sum, as Sen Jim Webb courageously put it when he introduced a bill aimed at fundamentally reforming America's penal state, a bill that predictably went nowhere: "America's criminal justice system has deteriorated to the point that it is a national disgrace" and "we are locking up too many people who do not belong in jail." The tragedy of Aaron Swartz's mistreatment can and should be used as a trigger to challenge these oppressive penal policies. As Moynihan wrote: "those outraged by Swartz's suicide and looking to convert their anger into action would be best served by focusing their attention on the brutishness and stupidity of America's criminal justice system."
I have signed both petitions. Of course, Obama is not going to fire the prosecutor for simply pursuing Draconian punishments -- he probably considers that part of her job. And firing one prosecutor doesn't solve any of the systemic problems. But at least it's shone a bit of sunlight on this area. The more I study other criminal justice systems, the more I become aware of how many aspects of the U.S. system are preposterously outdated, inefficient, and/or unjust. There's a German saying: Der als Normalität getarnte Wahnsinn: Insanity disguised as normality. Hmm, that might make a good subtitle.