The Problem(s) With American Criminal Justice

Tyranny and the Prosecutor

Regular readers know that it is our belief that the American criminal Justice system is a bloated, over-powered mess. One author on the subject believes that there are so many laws that the average American commits three felonies each day without even knowing it. There are so many laws and regulations (with criminal penalties), that no normal person could learn them all in order to comply.

Prosecutors in both the state and federal systems wield the power of these laws. A system built like this can lead to criminal prosecutions that are possible because a motivated DA or US Attorney can find some law that has been broken to get their conviction. Some zealous prosecutions have ended with the suicide of a defendant.

To be fair, though, many prosecutors are good men and women that honestly want to promote justice and order. In my last post, I discussed a prosecutor who I believe crossed way over the line.

The power of the Prosecutor

In this lengthy and powerful article, written by Radley Balko over at the Huffington Post, the power of the prosecutor in the American system of criminal justice is explored in detail. Below are some great passages of this article, but the full piece deserves a full read:

We have too many laws.
There have been a number of projects that attempted to count the total number of federal criminal laws. They usually give up. The federal criminal code is just too complex, too convoluted, and too weighted down with duplications, overlapping laws, and other complications to come to a definite number. But by most estimates, there are at least 4,000 separate criminal laws at the federal level, with another 10,000 to 300,000 regulations that can be enforced criminally. Just this year 400 new federal laws took effect, as did 29,000 new state laws. The civil libertarian and defense attorney Harvey Silverglate has argued that most Americans now unknowingly now commit about three felonies per day.

We need to move away from the idea that every act we find immoral, repugnant, or unsavory needs to be criminalized. Every new criminal law gives prosecutors more power. Once we have so many laws that it’s likely we’re all breaking at least one of them, the prosecutor’s job is no longer about enforcing the laws, but about choosing which laws to enforce. It’s then a short slide to the next step: Choosing what people need to be made into criminals, then simply picking the laws necessary to make that happen.

Prosecutors have perverse incentives.

At the state level, prosecutors are reelected, move on to higher office, or win prestigious jobs at high-powered law firms for racking up large numbers of convictions — and for getting high-profile convictions. They’re rarely publicly praised or rewarded for declining to prosecute someone in the interest of justice. I’m sure it happens. But it isn’t the sort of thing even a well-intentioned prosecutor is going to boast about in a press release.

And in conclusion…

Too often, criticism of prosecutorial excesses isn’t framed as this should never happen, but why isn’t this 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.

Rarely do I see a piece like this which delves so deep into the problems endemic to the system of American criminal justice. I applaud Mr. Balko for this piece and encourage readers to take a longer look.

The Suicide of a Federal Criminal Defendant

Silicon Valley and the DOJ Collide in Tragedy

Below is the story of PACER, Aaron Swartz, and a brilliant life cut far too short.

PACER

For years I’ve been working with, and silently cursing, PACER. This system, which stands for Public Access to Court Electronic Records, is an online system built and maintained by the federal government to give its citizens electronic access to court records.

As it usually goes, the government collects a fee for this services. Recently, although the system was already extremely profitable, they upped the cost per page by 25%1. Adding insult to pocket-book-injury is that this charge wasn’t levied because the old system was updated. We now just pay more for the same antiquated system that’s always been there.

Aaron Swartz

Activist. Programmer. Child Prodigy. Federal Criminal Defendant.

Aaron made a bigger impact on the internet by age 14 than many talented programmers will ever accomplish.2

As a programmer, he was a child prodigy. As an activist, he was fearless. If you’re reading this blog, on this website, chances are you’re probably very familiar with how relentless and intimidating the federal government can be to tangle with. Aaron saw the PACER system (see above) and decided to do something about it.

Instead of paying for the same pages over and over again, he took a piece of code called RECAP and ran with it. In the words of somebody more knowledgeable than me on Aaron, Cory Doctorow wrote:

At one point, he single-handedly liberated 20 percent of US law. PACER, the system that gives Americans access to their own (public domain) case-law, charged a fee for each such access. After activists built RECAP (which allowed its users to put any case law they paid for into a free/public repository), Aaron spent a small fortune fetching a titanic amount of data and putting it into the public domain. The feds hated this. They smeared him, the FBI investigated him, and for a while, it looked like he’d be on the pointy end of some bad legal stuff, but he escaped it all, and emerged triumphant.

In very basic terms, he took these documents which are in the public domain3 and prevented the federal government from getting paid on them. Hence, he pissed off people that don’t normally get messed with. He faced legal trouble, but came out of it clean.

After this, Aaron was very busy with public interest activism. At one point he decided that some scholarly and important documents4 hosted by JSTOR needed to be liberated from their server. So he planted a laptop in an MIT closet, grabbed a few million articles, and then retrieved the laptop.

Enter the Government

Aaron’s actions were probably nothing new to the folks around MIT and Harvard. However, his actions beforehand didn’t help his reputation with the federal government, and the US Attorney’s office didn’t hold back when bringing charges. As a federal criminal defendant, Aaron was looking at serious jail time, or so he was threatened.

From Tim Cushing of TechDirt:

Swartz, the executive director of Demand Progress, was charged with violating the Computer Fraud and Abuse Act, a catch-all designation for “computer activity the US government doesn’t like.”

Swartz had accessed MIT’s computer network to download a large number of files from JSTOR, a non-profit that hosts academic journal articles. US prosecutors claimed he “stole” several thousand files, but considering MIT offered this access for free on campus (and the files being digital), it’s pretty tough to square his massive downloading with any idea of “theft.

Much more has been written on this case. Read about what others had to say on prosecutor bullying in this case , when the law is worse that then crime, and how his actions turned affected one member of the tech community.

A Sad Ending

Despite 18 months of negotiation and legal posturing, it seemed as those Aaron would spend the rest of his life labeled as a felon. This is a label a lot of readers of this blog share and know the consequences of. To avoid this, a brilliant mind, prodigy, genius, and public activist killed himself.

I never met Aaron, but his work resonated through the word of tech, all the way to this lowly federal criminal consultant writing for this blog. His work making public records actually public and free reached even this far, and that says something profound.

  1. from $0.08 USD per page to $0.10 USD []
  2. Namely, he wrote the specs for RSS feeds that we all use in one form or another these days. []
  3. http://en.wikipedia.org/wiki/Public_domain []
  4. research papers, journal articles, thesis papers, etc. []