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Aaron Swartz and Motel Caswell: Book ends to prosecutorial reform?

A judge this week dismissed a drug forfeiture case involving a motel owner. The prosecutor, US Attorney Carmen Ortiz, is also facing criticism for her role in the prosecution of Internet hacker Aaron Swartz, who committed suicide earlier this month.

By Staff writer / January 26, 2013

U.S. Attorney Carmen Ortiz reacts during a news conference in Boston Jan. 17 as she speaks regarding her office's handling of the case against Internet freedom activist Aaron Swartz. Ortiz has been sharply criticized following Swartz' suicide for her office's handling of the hacking case against him.

Elise Amendola/AP

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ATLANTA

A judge this week struck down a US government scheme to seize a Tewksbury, Mass., motel because it had become a haven for drug dealers, bolstering concerns about whether US prosecutors in some cases have too much power.

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The decision in the long-running forfeiture case comes as the US attorney in Boston, Carmen Ortiz, is already under fire for her role in the death of Internet hacker Aaron Swartz, who killed himself on Jan. 11 as he faced a potentially long prison term for what many in the technology field have noted was nothing more than a breach of a contract involving Internet documents.

The two cases are feeding a simmering groundswell among constitutional law professors and others about the inherent discretionary powers of federal prosecutors, especially in an era of books like attorney Harvey Silverglate's "Three Felonies a Day: How the feds target the innocent."

"[M]ost of the time, prosecutors can be expected to exercise their discretion soundly," writes University of Tennessee constitutional law professor Glenn Reynolds, in a Jan. 20 paper called "Ham Sandwich Nation: Due process when everything is a crime."

“Unfortunately, these limitations on prosecutorial power are likely to be least effective where prosecutors act badly because of politics or prejudice,” professor Reynolds writes.

In his article, Reynolds lists several possible solutions, including reform of the grand jury system – a supposed check on prosecutors but where some now say a "ham sandwich" could be indicted – as well as weakening prosecutorial immunity rules so US attorneys would have "some skin in the game." Banning plea bargains, the process by which the majority of prosecutors get their convictions, is referenced as the "nuclear option" in prosecutorial reform.

In the Swartz case, the young hacker and co-creator of the Reddit website faced 13 felony counts from Ms. Ortiz' office tied to his use of an MIT network to download millions of academic journal articles to his laptop computer. The problem, critics of the prosecution say, is that Swartz' actions constituted a breach of contract more than a felony crime.

On Saturday, the "Anonymous" hacker group announced it had infiltrated the US Sentencing Commission website in retaliation for Swartz's death. The group said it had copied sensitive documents that it may make public. The site was inaccessible Saturday.

"Anonymous has observed for some time now the trajectory of justice in the United States with growing concern," the group said in a statement. "We have marked the departure of this system from the noble ideals in which it was born and enshrined. We have seen the erosion of due process, the dilution of constitutional rights, the usurpation of the rightful authority of courts by the 'discretion' of prosecutors. We have seen how the law is wielded less and less to uphold justice, and more and more to exercise control, authority and power in the interests of oppression or personal gain."

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