Tuesday, February 5, 2013

What Should Congress do about Aaron Swartz?

The tragic Aaron Swartz suicide is still news, and rightly so.  His case is a call to conscience for our lawmakers and our country.  

When do we know that we have gotten too tough on crime?  When sentences scare defendants to death -- literally. 

Much of the news around the Swartz case has focused on whether prosecutors went too far, but the case presents bigger problems that only Congress can solve.  In this Huffington Post piece, FAMM VP and general counsel Mary Price explains how sentences scare people to death and tells Congress how to prevent a repeat of Swartz's story:
In recent decades, our sentencing laws have become more punitive and frequently call for sentences grossly out of proportion to the harm they punish. These laws have become a club that prosecutors can wield as they seek to earn convictions. Today, nearly 98 percent of people charged in federal court plead guilty. That should come as no surprise.

I have seen this power used for years in drug cases where most of our nation's worst mandatory minimum sentencing laws apply. The threat of decades-long prison sentences convinced defendants to forfeit their right to a trial. Outlandish sentences now have become the norm in other areas as well, such as in white collar criminal cases where Congress has ensured that sentences have been increased exponentially in recent years. Law professor Ellen Podgor noted, "The risk of trial becomes so great that in order to minimize the possible consequences innocence becomes an irrelevancy. Although the plea bargain to trial differential existed for many years in crimes outside the white collar crime context, the high sentences now being given to individuals and entities charged with white collar crimes place those crimes in comparable stead with street crimes."

Which brings us back to Aaron Swartz. It was shocking that he forfeited his life in the face of prosecutors' threats. While members of Congress are, justifiably, calling on the Department of Justice to account for prosecutorial overreaching, we believe that some honest congressional soul searching is also in order. It is in lawmakers' power to remove the blunt force tools of excessive sentences and mandatory minimums from the hands of prosecutors. Rather than trying to legislate the exercise of executive discretion, policy makers can and should help channel it by ensuring that the sentences offenders face fit the crimes they are accused of committing and that judges have discretion to impose them. The sentencing laws are the problem lawmakers can fix.
Congress should repeal mandatory minimum sentencing laws and stop asking the U.S. Sentencing Commission to keep ratcheting up the sentencing guidelines.  Clearly, our sentences are already long enough.  They're already scaring people to death.

UPDATE:  For a glimpse of what Congress is doing, read this article from Main Justice.  Looks like Representatives Darrel Issa (R-CA), Elijah Cummings (D-MD), and Zoe Lofgren (D-CA) are taking steps to investigate and improve the laws that captured Aaron Swartz.