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January 16, 2013

Effective review and criticisms of modern big-government criminal justice in "The Power Of The Prosecutor"

AgiThe title of this post is drawn from the headline of this lengthy must-read new piece by Radley Balko in reaction to the controversy over the Swartz case.  Here is how the piece starts and ends, with the headings from what I have cut out is in-between:

The death of Internet activist Aaron Swartz has generated a lot of discussion about the power of prosecutors -- particularly federal prosecutors.  This is a good thing.  The conversation is long overdue. But the discussion needs to go well beyond Swartz and the Computer Fraud and Abuse Act.

Prosecutors have enormous power.  Even investigations that don't result in any charges can ruin lives, ruin reputations, and drive their targets into bankruptcy.  It has become an overtly political position -- in general, but particularly at the federal level.  If a prosecutor wants to ruin your life, he or she can.  Even if you've done nothing wrong, there isn't a whole lot you can do about it.

There are a number of factors that got us here, and it's worth looking at them in turn....

We have too many laws....

The laws are too vaguely and broadly written....

Prosecutors have perverse incentives....

Protections have morphed into weapons....

Bringing the hammer down.

The federal government in particular seems to be getting less tolerant of challenges to its authority, and more willing to use more force and more serious charges to make an example of people who defy the law.  You see this with the ridiculously disproportionate SWAT raids on medical marijuana dispensaries.  No one seriously believes the people running these businesses are a threat to federal law enforcement officers.  Sending the SWAT team is about sending a message.  The government is sending a similar message when it conducts heavy handed raids on farmers and co-ops that sell raw dairy products, or when it sends paramilitary teams to raid the offices of doctors suspected of over-prescribing prescription painkillers.  You see it when the feds throw the book at suspected copyright violators, or at the executives of online poker sites, threatening decades in prison.  The goal in these cases isn't to stop and punish someone who is a serious threat to other people.  It's to send a message to the rest of us: Defy the government as this person did, and here is what will happen to you.

The politicization of criminality.

When everyone is breaking the law, it becomes rather easy to use the law as a political weapon.  We saw this during the Bush administration with a number of targeted prosecutions aimed at prominent members of the other party, or at "sending a message" of some kind.  And of course the law and order instinct toward more power for cops and prosecutors has long been more associated with conservatives.

But the left is guilty, too.  The rush to publicly convict George Zimmerman for killing Trayvon Martin resulted in an indictment that most defense attorneys have since characterized as absurdly overreaching and aggressive.  Yet outside of legal commentators and pundits, most on the left seemed to be okay with it.  There have also been credible accusations of prosecutorial misconduct that have received little coverage outside the conservative media (which itself seems suddenly interest in protecting the rights of the accused).  When Elliott Spitzer was trouncing the constitution with aggressive tactics in his pursuit of corporate bigwigs, he was largely cheered by progressives and editorial boards who are traditionally more supportive of the rights of the accused.  When the Heritage Foundation first undertook its overcriminalization project, the progressive organization Media Matters actually mocked the conservative think tank for being soft on crime.

Too often, criticism of prosecutorial excesses isn't framed as this should never happen, but why isn't this also happening to the people I don't like?  Until that changes -- until partisans are willing to condemn abuses even by their own, or committed against their political opponents or people they personally find unsavory -- the problem is only going to get worse.

I'd suggest all of these factors (and probably a few I haven't thought of) have increasingly made us a nation ruled not by laws, but by politics (and by aspiring politicians).  And once criminality is influenced primarily by politics, we're all just potential criminals.

January 16, 2013 at 06:07 PM | Permalink


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I tend to agree with Mr. Balko in his criticism of criminal justice policy, but I question using George Zimmerman as an example of prosecutorial overreaching. I confess I am not familiar with the indictment, which I presume is for some form of homicide, but when you have a man with a gun shoot an unarmed boy in a public space, it's a little specious to suggest that politics drive the resulting criminal charges. Perhaps Mr. Zimmerman has a defense under Florida's "stand your ground" law, or even a claim of more traditional self defense. It's conceivable that the indictment resulted from shoddy police work. But homicide tends to be one of those things that, ideally, we take rather seriously, no matter what the context. I happen to fall within the progressive/liberal/bleeding heart crowd that Mr. Balko doesn't have a lot of respect for, but I don't think it's my political views that make me want to see Zimmerman at the very least investigated thoroughly--which he wasn't until the national hue and cry ensued.

That said, I heartily endorse reading Mr. Balko's commentary. He's very thoughtful, thorough, and knowledgeable.

Posted by: C.E. | Jan 17, 2013 12:36:51 AM

"The politicization of criminality."

If it is true that 40% of the gun owners that were published in the Journal News are past or present law enforcement, we can assume many more are affiliated. That could strongly suggest the majority of the NRA members are law enforcement. Then there are the prison guard union's victims' rights groups also calling for tougher law enforcement.

Clowns to the Left of me Jokers to the Right.

Posted by: Anon | Jan 17, 2013 2:14:59 AM

The FBI made its bones by going after Al Capone as if he were a small-time, white-collar offender. Since then it's routinely been going after suspects in small-time offenses or regulatory paperwork missteps as if they were Al Capone.

The Justice Department's game plan often goes out as it started out in the Swartz case. Agents/Prosecutors threaten 30-year prison sentences to compel confessions that ultimately yield sentences as relatively insignificant as home-detention, probation and/or a year or two in prison...as well as a felony conviction that disgraces and economically cripples for life.

With such terrifying bargaining leverage, Agents/prosecutors achieve high conviction rates almost always(upwards of 96 percent of targets "confess") without ever having to prove targets acted with criminal intent or committed acts easily recognizable to ordinary citizens as actual crimes.

Ass-clown lawmakers who push/support vague, sweeping crime bills get to pose as tough. The LE/incarceration industry profits. The only downside is in this reckless, perverse system is the damage it does to the concept of justice in a land that bills itself as the cradle of justice.

Hats off to Balko for spreading the word.

Posted by: John K | Jan 17, 2013 3:04:33 PM

...game plan often UNFOLDS as it started out in the Swartz case. (deleted "goes out")

Posted by: John K | Jan 17, 2013 3:08:06 PM

It's interesting that Radley Balko uses the study that was co-authored by the the NACDL and the Heritage Foundation for his recent piece on Huffington. When two organizations as diverse as these come together we should be able to see some truth in the conclusions.

Posted by: beth | Jan 17, 2013 3:23:30 PM

Prosecutors have many legal duties to defendants, enumerated in statutes, and in case law, in the Rules of Conduct, of Evidence, of Criminal Procedure. They should be legally liable in torts, and should be mandated to carry personal liability insurance. The taxpayer should not be made to pay for their deviations from professional standards of due care.

The same idea applies to judges.

To deter.

Posted by: Supremacy Claus | Jan 18, 2013 6:41:02 AM

Honoring Swarz, a computer prodigy who could have invented programs adding billions of value to the economy, came hundreds.


While his feminist Inquisition 2.0 tormentor lives to destroy millions in economic value every year she is alive.

Posted by: Supremacy Claus | Jan 20, 2013 1:27:30 AM

What the left wing activist Balko fails to mention? Rent seeking. These trends are driven by bad faith, and greed, therefore, are criminal acts themselves.

Rent seeking is a synonym for armed robbery. It should be criminalized. The rent seeking lawyer should be arrested tried, and imprisoned.

Posted by: Supremacy Claus | Jan 20, 2013 1:33:22 AM

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