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PROSECUTORIAL INDISCRETION

This 26 year old killed himself rather than face the prospect of a 35 year sentence for a minor act of college campus trespass that was used by the Massachusetts prosecutor as part of a media campaign.

https://www.nytimes.com/2013/01/14/technology/aaron-swartz-a-data-crusader-and-now-a-cause.html?ref=todayspaper&_r=0

Aaron Swartz was considered a tech prodigy and had engaged in several acts of civil disobedience in order to make information available to the public.  Several of his actions, including tapping into the MIT computer system in order to make academic articles available for free on the internet, involved no financial gain on his part.  There were no state secrets, counter-intelligence files or documents relating to national security involved, just harmless academic materials.

As part of a media  fueled public relations campaign, the Massachusetts U.S. Attorney decided to throw the book at this kid and refused to allow a non-jail plea.  As a result, Aaron took his own life last Friday when he hung himself in his Brooklyn apartment.

https://business.time.com/2013/01/14/mit-orders-review-of-aaron-swartz-suicide-as-soul-searching-begins

Prosecutors have wide latitude in deciding when and to what extent to bring charges.  You cannot sue a prosecutor if he or she refuses to bring charges even though the charges may be warranted.  Prosecutors can manipulate the grand jury and bring charges, so long as there is probable cause, when they alone see fit. Prosecutors have immunity when they are not acting in an investigative capacity in the event they bring charges, which are subsequently dismissed, assuming no Brady or other constitutional violations.

The American Bar Association has promulgated guidelines which provide a more ethical and reasonable framework for unfettered prosecutorial discretion.    https://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_pinvestigate.html#1.2

Take a look the Standards and General Principles delineated in these recommendations (they are not laws or regulations that prosecutors must follow):

“ (d) The prosecutor should:

(i) ensure that criminal investigations are not based upon premature beliefs or conclusions as to guilt or innocence but are guided by the facts;

(ii) ensure that criminal investigations are not based upon partisan or other improper political or personal considerations and do not invidiously discriminate against, nor wrongly favor, persons on the basis of race, ethnicity, religion, gender, sexual orientation, political beliefs, age, or social or economic status;

(iii) consider whether an investigation would be in the public interest and what the potential impacts of a criminal investigation might be on subjects, targets and witnesses; and

(iv) seek in most circumstances to maintain the secrecy and confidentiality of criminal investigations.

(e) Generally, the prosecutor engaged in an investigation should not be the sole decision-maker regarding the decision to prosecute matters arising out of that investigation.

(f) The prosecutor should be aware of and comply with the ethical rules and other legal standards applicable to the prosecutor’s conduct during an investigation.

(g) The prosecutor should cooperate with other governmental authorities regarding matters that are of legitimate concern to such authorities when doing so is permitted by law and would not compromise an investigation or other criminal justice goals.

(h) The prosecutor’s office should provide organizational structure to guide its members’ investigative work.”

The unfortunate actions of the Massachusetts United States Attorney, leading to the death of Aaron Swartz, will do nothing, but fuel efforts of young people and others to make information more available on the internet.  (Internet Archive, Creative Commons, Wikipedia, Recap)

 

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