Prosecutorial Discretion Is A Huge Unregulated Threat To Civil Liberties: The Lesson Of Aaron Swartz And David Gregory

Posted by Milton Recht:

From the academic paper, "Ham Sandwich Nation: Due Process When Everything Is A Crime" by Glenn Harlan Reynolds, Beauchamp Brogan Distinguished Professor of Law, University of Tennessee. J.D. Yale Law School:

Attorney General (and later Supreme Court Justice) Robert Jackson once commented: "If the prosecutor is obliged to choose his cases, it follows he can choose his defendants." The result is "The most dangerous power of the prosecutor: that he will pick people he thinks he should get, rather than pick cases that need to be prosecuted." Prosecutors could easily fall prey to the temptation of "picking the man, and then searching the law books . . . to pin some offense on him." In short, prosecutors’ discretion to charge – or not to charge – individuals with crimes is a tremendous power, amplified by the huge number of laws on the books.

Two recent events have brought more attention to this problem. One involves the decision not to charge NBC anchor David Gregory with weapons--‐ law violations bearing a potential year--‐long sentence for brandishing a 30--‐ round magazine (illegal in D.C.), despite the prosecutor's statement that the on--‐air violation was clear; the other involves prosecutors' rather enthusiastic efforts to prosecute Reddit founder Aaron Swartz for downloading academic journal articles from a closed database, prosecutorial efforts so enthusiastic that Swartz committed suicide in the face of a potential 50--‐year sentence.

Both cases have aroused criticism, and in Swartz's case even legislation designed to ensure that violating websites’ terms cannot be prosecuted as a crime. But the problem is much broader. Given the vast web of legislation and regulation that exists today, virtually any American is at risk of prosecution should a prosecutor decide that they are, in Jackson’s words, a person "he should get."***With so many more federal laws and regulations than were present in Jackson's day, the task for prosecutors of first choosing the man – or woman – and then pinning the crime on him or her has become much easier. This problem has been discussed at length in Gene Healy's Go Directly To Jail: The Criminalization of Almost Everything, and Harvey Silverglate's Three Felonies A Day. The upshot of both is that the proliferation of federal criminal statutes and regulations has reached the point that virtually every citizen, knowingly or not (usually not) is potentially at risk for prosecution. That is undoubtedly true, and the consequences are drastic and troubling. [Emphasis added, Footnotes omitted.]