With Bipartisan Letter on Swartz, Criticism of Plea Bargain Tactics Gains New Prominence
By Mary Jacoby | January 29, 2013 9:37 pm

Justice Department prosecution tactics have garnered a lot of ink by investigative reporters in the past, and been decried by both the liberal American Civil Liberties Union and the conservative U.S. Chamber of Commerce.

But the Aaron Swartz case is the event that may finally force the DOJ to consider a policy shift.

This week, two House Members not known for bipartisan agreement — House Oversight Committee Chairman¬†Darrell Issa (R-Calif.) and Ranking Member Elijah Cummings (D-Md.) — wrote to Attorney General Eric Holder asking for explanations about the manner in which prosecutors pursued Swartz, the open Internet activist who committed suicide Jan. 11 facing hacking charges.

Swartz was under criminal investigation for unauthorized downloading of a huge number of academic articles from a publicly supported online database, JSTOR. JSTOR opposed his prosecution, but the office of Massachusetts U.S. Attorney Carmen Ortiz went ahead anyway.

Prosecutors reportedly used typical tactics – racheting up pressure on their target by threatening to push for years in prison if he went to trial. Instead, Ortiz has said her office was prepared to settle for a six-month prison term if he pleaded guilty.

The lawmakers took aim at a superceding indictment filed Sept. 12, 2012 that increased the number of felony counts Swartz was charged with to 15 from four. There are many ways prosecutors can wave a magic wand and make a case worse for the defendant – in this case, the lawmakers say, by assigning specific dates to each alleged illegal act of Swartz and turning them into separate felony charges.

The lawmakers asked of Holder: “What factors influenced the decision to prosecute Mr. Swartz for the crimes alleged in the indictment, including the decisions regarding what crimes to charge and the filing of the superseding indictment?”

Another question from the lawmakers — “How did the criminal charges, penalties sought, and plea offers in this case compare to those of other cases that have been prosecuted or considered for prosecution under the Computer Fraud and Abuse Act?” — takes aim at the penchant of prosecutors to pursue high-profile targets in an attempt to garner publicity and make an example of them.

These tactics are used all the time, but rarely spark public outrage.

Main Justice has covered the case of convicted former Jack Abramoff associate Kevin Ring, who apparently angered prosecutors by refusing to strike a plea deal, forcing them into two resource-draining trials. (Ring’s first trial ended in a hung jury. His second ended in conviction. An appeals court upheld the conviction last week.)

The Justice Department at first recommended a 22-year sentence for Ring – 16 years longer in prison than Abramoff himself, who ran the lobbying scheme that bilked millions out of unsuspecting Indian tribes. Ring pushed back, convincing U.S. District Judge Ellen Huvelle that prosecutors were trying to punish him for exercising his constitutional right to trial. He was sentenced to 20 months.

Just this week, Main Justice wrote about a judge in Las Vegas who refused to order restitution for a bit player in a mortgage fraud scheme, accusing prosecutors of losing perspective.

The Wall Street Journal in September documented how the number of plea bargains has soared in recent years, and the pressure brought to bear on defendants to plead guilty and forgo trials. It cited an academic study that showed a high rate of innocent people accepting guilty pleas to avoid the risk of losing at trial and getting more time.

The New York Times weighed in on a similar theme with an investigative piece in September 2011 on plea bargaining.

Plea bargains have risen as funding for the Justice Department and federal courts has stayed level, meaning resources are scares for time-consuming trials. Partisan gridlock in Congress has left 83 vacant judgeships in the federal courts, increasing pressure on the system to move cases without trial.

Lurking and probably smiling in the background is the business community, which has long protested prosecutor tactics against corporations.

Corporate lawyers say they almost always advise clients to settle — even when they believe they have a strong case to tell a judge and jury — because the mere threat of a trial can do greater harm to shareholders, by creating uncertainty. Companies can be barred from accepting government contracts while under indictment. They might lose if they go to trial – meaning lawsuits against officers and possibly crippling their businesses.

No one cries for a big corporation. Still, the prevalence of deferred prosecution agreements means prosecutors are almost never forced to test their theories of guilt before a judge and jury, arguably eroding constitutional protections.

On the other hand, there is growing criticism of deferred prosecution agreements, which critics say let companies off for wrongdoing with a fine that can be merely the “cost of doing business,” though the government — acting more as regulator than prosecutor – touts the major compliance changes it can force onto a company in an effort to change their cultures into something presumably more law-abiding.

So where does this growing uproar leave the Justice Department? In its usual Catch 22 situation.

If it takes no action, it will be criticized. If it reaches a deferred prosecution agreement with a company, it will be criticized. If it goes to trial and loses, it will be criticized.

We don’t see much change coming to the corporate prosecution arena anytime soon. But for individuals, the Justice Department may well be forced to start weighing more carefully the unique facts of each defendant, and proceeding with more compassion.


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