Fixing the System: The Usual Suspects
Randy Barnett at Volokh Conspiracy, offers a "terrific" short "scholarly" paper by Instapundit Glenn Reynolds, oddly entitled Ham Sandwich Nation: Due Process When Everything is a Crime (without giving credit to former New York Chief Judge Sol Wachtler for the "ham sandwich" reference), together with a concurrence in The Atlantic by Conor Friedersdorf called 8 Ways to Stop Overzealous Prosecutors From Destroying Lives, who also mentions "legal scholar" Orin Kerr's VC post that Swartz's prosecution was "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." This was not exactly a new concept, but I digress.
Gideon at A Public Defender has already made the obvious point, that the "legal scholars" have trotted out the usual assortment of bad fixes:
The problem with the superficial schemes to fix the system, aside from their being absurdly unrealistic, is that they come bundled with massive unintended consequences that apparently fly over the heads of their promoters, even if they are obvious to anyone actually engaged in the practice of law in the trenches.
The Atlantic piece – and by extension Reynolds’ brief – are a listing of the usual bad ideas – make the state pay the legal bills of acquittees, ban plea bargains altogether (NO! BAD DOG!) – thrown in with some good ones.
But Gideon embraces the "good ones:"
I suspect that this confuses issues, as curbing immunity for prosecutors is a longstanding idea that serves many palliative purposes, not the least of which is creating an incentive to not cheat the system by withholding Brady material, for example. But this offers no comfort to a defendant from a prosecutor charging 16 offenses stemming from an single course of conduct as long as the laws exist. Even if there was only qualified immunity, overcriminalization would protect the prosecutor. The crimes are on the books, pal, and there would be no wrong in charging them.
Two of the ideas proposed by Reynolds (and one by Orin Kerr) deserve scrutiny: giving prosecutors only qualified immunity for their actions and that too only when they act in bad faith (after all, like the law and order crowd likes to say: if you’ve done nothing wrong, you’ve got nothing to fear) and the more intriguing idea: permitting juries and judges to know of plea bargains when sentencing.
As for the second idea, Gideon makes an unfortunate assumption that "[t]ypically judges who sentence after a trial aren’t the same judges who preside over pre-trial negotiations and there’s a a prohibition on that judge knowing the details of the offer." Maybe in Connecticut state court practice, but not in other state or in federal court. It's important, when vetting ideas, to remember that different jurisdictions operate differently, and in federal court (where Swartz was being prosecuted) the same judge typically presides throughout.
More importantly, the incentive (if the jury was to be told of plea offers) would compel prosecutors to be more harsh in their plea offers so that any act of mercy or compassion wouldn't bite them in the butt at trial if their kindness was rejected. That doesn't move the ball forward. Not at all.
Despite the efforts to ride the coattails of the Aaron Swartz case toward a facile "fix," it seems that none of the legal scholars address the disease, preferring instead the bandaid approach. The problem with overcriminalization is overcriminalization. The problem is that we applaud our legislators for coming up with a knee-jerk legal fix for everything that ails us at any given moment. Ironically, there is even an "Aaron's Law" proposed by Rep. Zoe Lofgren, because no young person is allowed to die without a law being named after him.
So the first step in "fixing" overcriminalization is to stop the political aggrandizement that comes with demanding/applauding a new law to solve every ill that appears in the morning paper. We live under the crushing burden of redundant and ill-conceived laws and regulations, and yet the fact that prosecutors use them suddenly shocks us?
The second step, nowhere to be found in the scholarly fixes, is to expect judges, who exist to play the role of neutral in the great war, to be, in fact, neutral in their exercise of discretionary authority. Why do we look only to prosecutors to exercise discretion, when they are adversaries in our system? Yes, I'm familiar with Justice Robert H. Jackson's 1940 speech about the exercise of discretion by prosecutors to curb their awesome power, but the goodwill of prosecutors is hardly a basis for a viable criminal justice system.
We have judges. Has everyone forgotten, or given up? They sit on high benches, well-equipped to toss duplicitous charges, to refuse to enhance sentences merely because a prosecutor smurfs an act into 37 offenses. They have the power of discretion and mercy, and yet no one mentions their duty to be parsimonious?
There are fundamental failings in the criminal justice system, and these failings are pervasive. The solution will never be found by nipping around the edges, or tricky fixes that create the next round of nightmares, or demanding the advocates in the system play nicer, at least when we want them to. The tools of due process exist, if only they are used by the people who are charged with assuring due process. Still, they are left out of the discussion and let off the hook. And disease continues to fester, even as another bandaid is applied.
Before closing, a suggestion: Much as I realize how much fun it is for pundits in the blawgosphere to hook their posts to whatever issue is trending, to ride the coattails of popularity to score as many eyeballs as possible that would otherwise never know they existed, hasn't the name of Aaron Swartz been dragged through the internet enough? Let him rest in peace. The discussion of these issues doesn't demand the invocation of his name, and perhaps if the urge to hop on the train wasn't so strong, the content offered would be far more thoughtful. And lawprofs wouldn't be constrained to do the unthinkable, a 6 page paper on SSRN, just to get it in under the wire.