House Panel Wants to Check Prosecutorial Power

by Elizabeth on February 5, 2013

in Criminal Justice

It’s rare to see a governmental body put checks on prosecutors. Usually, the governments (local, state, and federal) count on prosecutors to be their heavy hand, the top law enforcer. This has led, in part, to  prosecutors having more power than ever and throwing that power around with little thought about its effects on due process rights or even the health of defendants.

Case in point: Internet activist Aaron Swartz.

aaronswartzSwartz committed suicide a few weeks ago while in the midst of an ugly federal criminal case. Now, the House Oversight and Government Reform Committee is demanding a briefing from the Justice Department on his prosecution following an outpouring of questions, concerns, and downright disgust from the Internet community, Swartz’ family, members of Congress and countless others.

Among Swartz’ rallying cries was that more information should be free to the public. To that end, he hacked into the Massachusetts Institute of Technology and downloaded 4.8 million documents from a subscription-only service.

At the time of his death he was facing serious charges, what some would argue were too serious given the circumstances of his offense. He was looking at up to 35 years in prison and fines of $1 million. In her benevolence (and I use that term with implied sarcasm), the federal prosecutor, Carmen Ortiz, offered Swartz seven to eight months in prison as part of a plea deal where he would admit to 13 felonies. If he refused, they would seek seven to eight years—hardly appropriate for a computer crime that truly hurt no one.

Asked about the charges and whether they fit the crime, Ortiz released a statement earlier this month calling them “appropriate”.

But, the House Committee isn’t so sure.

They have demanded the Department of Justice provide a briefing by Monday, February 4. In their letter, directed at Attorney General Eric Holder (which can be read here), the Committee has implied that perhaps Swartz’ anti-government rhetoric may have played a role in the DOJ playing hard ball. (They increased his number of felony charges from four to 13 by accounting for each specific involved date as a new criminal charge, among other things.)

The Committee wants to know “what factors influenced the decision to prosecute Mr. Swartz,” “what specific plea offers were made…and what factors influenced the decisions by prosecutor regarding plea offers,” if the federal investigation revealed “evidence that he had committed other hacking violations,” and more.

Prosecutors, in their choosing what crimes have been violated and how to offer plea bargains, wield considerable power. Some would say far too much. It’s this power, through the use of plea bargains, that often gets innocent people to admit to crimes they never committed. It would be a reach, however, for the DOJ to admit that they foster a culture of unchecked and potentially abused power.


Elizabeth Renter is a freelance writer and editor who writes about criminal justice issues.

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