Fixing the System: The Usual Suspects

There’s nothing like a case that captures the interest of the internet to be a never-ending source of fodder for ideas that have been said before and opportunistically said again.  Sadly, Aaron Swartz’s suicide is being used as such an opportunity. 

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 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.

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. 

But Gideon embraces the “good ones:”

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.

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.

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.

11 thoughts on “Fixing the System: The Usual Suspects

  1. David Sugerman

    I sat as a juror once. Kid shoplifts a 6-pack of beer. When store security confronts, kid allegedly whacks security with the 6-pack. Simple (and admitted) theft is not submitted to the jury, but a felony assault is. Jury is not told about mandatory minimum that attaches if convicted. Fortunately, we acquit. Juries need to be told about sentencing

  2. SHG

    Or the use of mandatory minimums, a response to publicly perceived “revolving door justice,” could be curtailed or eliminated. Juries are a funny thing. Some show mercy. Some want to know if they can sentence a shoplifter to death. The jury nullification notion that jurors are inclined toward leniency if only they realized the consequences of their decision isn’t necessarily accurate.

  3. David Sugerman

    Correct that juries won’t necessarily use sentencing info toward leniency. There is a lot of fear out there. But this one isolated example really wanted to convict of something and knew he would just get a slap on the wrist. (I think the mandatory min might have been 70 months.) Seems like if the jury knew that the prosecutor chose to not submit simple theft and what the two sentences were, the prosecutor would be much more circumspect in making her choices. (Yes, I love my neat, naieve life….)

  4. SHG

    What strikes me about your anecdote is that the defense likely moved to dismiss the counts of the indictment as legally insufficient, and the judge ruled for the prosecution. The judge could have dismissed the assault count for insufficiency of harm, but chose instead to leave the dirty work to the jury so he/she wouldn’t be the bad guy, cutting the defendant a break.  In other words, if the judge did the job, the jury wouldn’t have to.

  5. David

    It’s kind of surprising that the prosecutor didn’t stack six counts of petit larceny (one for each can)onto the assault charge.

  6. Jim Majkowski

    A Michigan prosecutor might come up with armed robbery on this one. MCLA §750.530:

    Sec. 530.

    (1) A person who, in the course of committing a larceny of any money or other property that may be the subject of larceny, uses force or violence against any person who is present, or who assaults or puts the person in fear, is guilty of a felony punishable by imprisonment for not more than 15 years.

    (2) As used in this section, “in the course of committing a larceny” includes acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property.


    Sec. 529.

    A person who engages in conduct proscribed under section 530 and who in the course of engaging in that conduct, possesses a dangerous weapon or an article used or fashioned in a manner to lead any person present to reasonably believe the article is a dangerous weapon, or who represents orally or otherwise that he or she is in possession of a dangerous weapon, is guilty of a felony punishable by imprisonment for life or for any term of years. If an aggravated assault or serious injury is inflicted by any person while violating this section, the person shall be sentenced to a minimum term of imprisonment of not less than 2 years.

    Well, the statute doesn’t use the word robbery, but that’s what it is.

  7. CatCube

    Could follwing court-martial practice of allowing the jury to convict on lesser included offenses help with some of this? Now, I’m not a JAG, nor have I been tagged for court-martial yet, but my understanding is that LIOs are *always* an option for the panel.

  8. SHG

    Lesser includeds are available in all courts, as far as I know, subject to the judge’s willingness to submit them and the lawyer’s request for them. The reason they are not always a good thing is that it promotes juries’ splitting the difference, acquitting on the top and convicting of a lesser included, rather than an outright win one way or the other. When you think you’ve got the case beat, the last thing you want is a compromise verdict.

  9. ajwpip

    You argue that we should remember the role of judges to be parsimonious. What is the change you suggest that is going to make them better at doing their jobs than they did previously?

  10. Steve White

    Mr. Greenfield writes on over-criminialization, which surely is an issue. Our legislators and governors indeed criminalize much, and there is much to say in returning to a ‘mens rea’ system in which all criminal offenses are clearly understood by the average person. However, it isn’t going to happen, and for a simple reason — we live in a complex society.

    We are 310 million very diverse people, in a diverse culture, in a technologically, economically, socially advanced society. Even the simplest commandments require sometimes voluminous explanation. ‘Thou shalt not steal’? Okay, let’s have the SEC explain that one to Wall Street in a million words or less. ‘Thou shalt not do no murder’? Okay, let’s apply that to the Zimmermann trial going on right now. Good luck.

    A complex society has increasingly complex law, because we have so many more situations in which we want law. The alternative is less law which means less advance and in the end (taken far enough) barbarism.

    Yes, we have too many criminal laws. Some of plainly ridiculous, but many more are in the eye of the beholder. Goodness knows how we’ll reduce the number without creating harm to the society we all want.

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