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<div id="disqus_title">[The Panglossian world of US
Exceptionalism.... of course these matters are discussed and
debated, but dare to do anything about it and then those will be
put in their place, or no?]<br>
<br>
The Overzealous Prosecution of Aaron Swartz</div>
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<cite class="byline">
By
<a class="author"
href="http://www.bloomberg.com/view/bios/stephen-carter/">Stephen
L. Carter</a>
</cite>
<cite class="byline story_time">
<span style="display: inline;" class="datestamp"
bglocalize="true" bgdatestamp="mmm d, yyyy h:MM TT Z"
epoch="1358465406000">Jan 18, 2013 1:30 AM GMT+0200</span>
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<p>The tragic suicide last week of
Aaron Swartz, the visionary Internet activist who helped create
Reddit, is being blamed in part on the zeal of the U.S. attorney
whose office was prosecuting him for supposed computer crimes. </p>
<p>Professor Lawrence Lessig of <a
href="http://topics.bloomberg.com/harvard-law-school/"
density="sparse">Harvard Law School</a> <a
href="http://lessig.tumblr.com/post/40347463044/prosecutor-as-bully"
title="Open Web Site" rel="external" density="full">described</a>
his close friend Swartz as having been “driven to the edge by
what a decent society would only call bullying.” Others pointed
out that Swartz’s alleged offense -- downloading scholarly
papers without paying for them -- was essentially victimless.
The owner of the database from which the papers were taken chose
not to pursue the matter. </p>
<div class="story_inline assets clearfix"><br>
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<p>The critics have a point. The prosecution of Swartz was
ridiculous. But it’s a small part of a larger problem. There’s
far too much prosecution in the U.S. And as the philosopher
Douglas Husak points out in his book “<a
href="http://books.google.com/books/about/Overcriminalization_The_Limits_of_the_Cr.html?id=VM99sfBP9ZIC"
title="Open Web Site" rel="external" density="full">Overcriminalization</a>,”
the
reason we have too much prosecution is that we call too many
things crimes. </p>
<p>By one common estimate, Congress creates new federal
felonies at the rate of one a week. Husak argues that criminal
liability has become less the outcome of deliberation than a
habit, a bizarre bit of boilerplate tacked onto the end of
statutes or regulations without a second thought. Criminal
defense lawyers are fond of claiming that the average American
commits two or three punishable crimes every day. </p>
<h2>Overbroad Statutes </h2>
<p>Here is the nub of the problem, as Husak describes it: </p>
<p>“Experts in the criminal law cannot make accurate
predictions about potential offenders because the fate of such
persons is not a function of the law at all. The real criminal
law, as Holmes would construe it, is formulated by police and
prosecutors. The realization that police and prosecutors wield
such discretion is nothing new. What is new is the power to
arrest and prosecute nearly everyone -- a power that derives
from the ever-expanding scope of criminal statutes as written.”
</p>
<p>The <a href="http://www.law.cornell.edu/uscode/text/18/1030"
title="Open Web Site" rel="external" density="sparse">Computer
Fraud and Abuse Act</a> -- the principal statute
under which Swartz was charged -- is a good example of Husak’s
point. Enacted in the 1980s, before the Internet explosion, the
statute makes a criminal of anyone who “intentionally accesses a
computer without authorization or exceeds authorized access”
and, in the process, obtains financial information, government
information or “information from any protected computer.” </p>
<p>What’s wrong with this language? Consider: You’re sitting
in your office, when suddenly you remember that you forgot to
pay your Visa bill. You take a moment to log on to your bank
account, and you pay the bill. Then you go back to work. If your
employer has a policy prohibiting personal use of office
computers, then you have exceeded your authorized access; since
you went to your bank website, you have obtained financial
information. </p>
<p>Believe it or not, you’re now a felon. The likelihood of
prosecution might be small, but you’ve still committed a crime.
</p>
<p>Aware of this risk, some federal courts have given the
statute’s language a narrow construction, but others have read
it broadly, and the Obama administration has opposed efforts in
Congress to narrow its scope. Alex Kozinski, chief judge of the
<a href="http://topics.bloomberg.com/u.s.-court-of-appeals/"
density="sparse">U.S. Court of Appeals</a> for the Ninth
Circuit, warned in an
opinion last spring that the government’s position “would make
criminals of large groups of people who would have little reason
to suspect they are committing a federal crime.” </p>
<p>The statute isn’t unique, either in its vagueness or in its
scope. In both parties there are people who believe that because
they can make something illegal, they should; that somehow
they’re not showing how much they care unless they’re thinking
up new reasons to lock people up. </p>
<h2>Overzealous Prosecutors </h2>
<p>A traditional check on the absurd breadth of the law has
been the discretion of prosecutors not to prosecute. Yet as law
Professor Angela J. Davis of the American University Washington
College of Law notes, this discretion is too rarely exercised.
In her thoughtful book “<a
href="http://www.amazon.com/Arbitrary-Justice-Power-American-Prosecutor/dp/0195384733"
title="Open Web Site" rel="external" density="sparse">Arbitrary
Justice</a>,” reflecting on her
own days as a prosecutor, Davis writes that although some
colleagues “saw themselves as ministers of justice and measured
their decisions carefully, very few were humbled by the power
they held.” Further, she writes, there’s no real check on abuse:
“The judicial branch has failed to check prosecutorial
overreaching, and the legislative branch traditionally has
passed laws that increase prosecutorial power.” </p>
<p>In a better world, prosecutors, like other functionaries of
government, would indeed be humbled rather than emboldened by
the authority placed in their hands. Too often, they’re not. The
question is what to do about it. </p>
<p>When corporate titans begin to swagger, the response of our
political branches is to burden them with layer upon layer of
regulation -- including, in many cases, criminal liability. When
government officials abuse their authority, even when they cause
enormous injury, the usual response is -- nothing. Errors of
judgment by private citizens are occasion for new laws; errors
by public servants, which can be equally if not more costly, are
unfortunate incidents. </p>
<p>Here criminal prosecution presents a particular dilemma. On
the one hand, prosecutors need to be able to do their difficult
and often dangerous work without constantly looking over their
shoulders, worrying about the legal consequences to themselves.
On the other, given the penchant of government to criminalize
more and more behavior, those who prosecute the law have to
display enough common sense and humility to show that they
remember they work for us -- not the other way around. </p>
<p>Uncontrolled prosecutors shouldn’t necessarily be thrown in
jail. But if we believe our own rhetoric about the treatment of
others who abuse power, a heightened degree of civil liability
would help them to do their jobs better. Right now, prosecutors
are protected from most lawsuits by what’s called qualified
immunity. Prosecutors have to make hard decisions about going
after dangerous people. They shouldn’t have to worry overmuch
about being sued. The immunity of prosecutors should indeed be
high. It just shouldn’t be as high as it is now. </p>
<h2>Unconcerned Judges </h2>
<p><b>And how high is that? High enough that the </b><b><a
href="http://topics.bloomberg.com/supreme-court/"
density="sparse">Supreme Court</a></b><b>
recently </b><b><a
href="http://www.supremecourt.gov/opinions/10pdf/09-571.pdf"
title="Open Web Site" rel="external" density="full">rejected</a></b><b>
a lawsuit against a prosecutor whose office
deliberately failed to turn over exculpatory material to a
defendant who was subsequently convicted twice, both times
wrongly -- first of armed robbery, then of murder -- and came
within a month of execution before the hidden reports turned
up.
Oh, well, wrote the justices: It was a single incident, not a
pattern, and so didn’t rise to a violation of the
Constitution. </b></p>
<p>Critics excoriated the decision, but the true problem isn’t
judicial. It’s legislative. Congress could abrogate the immunity
of federal prosecutors any time it likes; state legislatures
could do the same for their own state’s attorneys. Working out a
more nuanced system, protecting discretion while allowing
lawsuits in cases of clear abuse, would be difficult. But that’s
no excuse for not trying. Yes, the potential for liability would
make the work of the prosecutor harder -- but surgeons and chief
executive officers seem to manage. </p>
<p>Prosecutors do need immunity. They just need a little less
of it. </p>
<p>(Stephen L. Carter is a Bloomberg View columnist and a
professor of law at <a
href="http://topics.bloomberg.com/yale-university/"
density="full">Yale University</a>. He is the author of “The
Violence of Peace: America’s Wars in the Age of Obama,” and the
novel “The Impeachment of <a
href="http://topics.bloomberg.com/abraham-lincoln/"
density="sparse">Abraham Lincoln</a>.” The opinions
expressed are his own.) </p>
<p>To contact the writer of this article:
Stephen L. Carter at <span><a class="moz-txt-link-abbreviated" href="mailto:stephen.carter@yale.edu">stephen.carter@yale.edu</a></span> or
@StepCarter on
Twitter. </p>
<p>To contact the editor responsible for this article:
<a href="http://topics.bloomberg.com/michael-newman/"
density="full">Michael Newman</a> at <a
href="mailto:mnewman43@bloomberg.net" title="Send E-mail"
density="mailto">mnewman43@bloomberg.net</a>. </p>
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