There should be a difference between prosecution and persecution
The long “War on Crime,” America’s longest, has gone on a lot longer (’67 to now), and done a lot more damage to American law and society, than most people reckon (at least those who missed my 2007 tome, Governing through Crime: How the War on Crime Transformed American Democracyand Created a Culture of Fear (Oxford University Press)). Perhaps the most troubling and persistent feature is not our outsized prison population, what we call “mass incarceration,” but an institution that arguably lies primarily behind that pathology, the outsized power of American prosecutors. On a comparative basis, no other democratic society comes close to the discretion and politicization that combine in the American prosecutor.
First, in most countries, prosecutors are career civil servants working for nationally organized bureaucracies with a long history of being (relatively) depoliticized (often quasi judicial in nature). In the United States we have two kinds of prosecutors, both in their own way deeply politicized. In the states, responsible for more than 80 percent of all prosecutions, prosecutors are, or work directly for, individual politicians who run for office regularly in a local constituency (generally a county). In the federal system, prosecutors are appointed by the President, generally on the recommendation of the state’s senators (a potentially politicized process), and overseen by the Attorney General, often one of the most politically connected players in the executive branch (Robert Kennedy, Edwin Meese).
Second, in most countries prosecutors are circumscribed fairly tightly by a criminal code that has been developed overtime by a depoliticized and autonomous judiciary. In the United States, prosecutors are free to rummage at will through state and federal criminal codes that are more like Harry Potter’s room of requirement than a legal instrument designed to bind law enforcers as well as citizens, overseen by judges that are themselves often elected and reliant on prosecutors and police unions for endorsements and donations.
Finally, in many other democracies countries, truly disproportionate sentences are rare, because the length of punishment is set by relatively autonomous specialist bureaucracies and because the conditions of imprisonment are regulated by human rights charters and enforcement organs. In the US, disproportionate sentencing has become the norm and our Supreme Court has expressly held that it reserves judicial intervention to extreme examples like “life in prison” for a parking violation (Michigan v. Harmelin, Kennedy, J. concurring).
These features of American prosecution have always been there, but historically they were held in check by two forces. 1) Local politics meant that well organized communities could use their influence on “city hall” to push back against over zealous prosecution. 2) The limited scope of federal criminal law meant that federal prosecution was largely reserved for specialist criminals like bank robbers.
All of this changed with the “War on Crime”, declared by both parties in the 1960s, LBJ and Nixon in ’67 and ’68, and which began to transform state institutions a decade later in the late 1970s. This federal influence continued with two further waves of both cash and policy initiatives aimed at increasing use of imprisonment under Presidents Reagan and George H. W. Bush (1986-1991) and under President Clinton (1994-6). The global war on terror, declared by President George W. Bush in 2001, and pursued with some vigor by President Obama, represents a direct continuation of this original "War on Crime" and its forms of political subjectivity, logic and sovereignty. Not accidentally, the War on Crime placed prosecutorial prerogative and power and the very heart of its strategy.
First, prosecutors were viewed not as one side of an adversary justice process, but as the very head of a unilateral crime control process. Both state and federal laws and practices have changed to give prosecutors unprecedented power to target individuals and groups. With their unique posture of being an executive leader with a mandate to fight crime, prosecutors have become the model political posture for all politicians hoping to become mayors, governors, or ultimately President. Barack Obama was our first President since Gerald Ford who did not prove his bonafides first as a Governor by signing tough new criminal statutes into law or by seeking any carrying out executions of convicted death row prisoners.
Second, convinced that slow court processing was preventing law enforcement from containing crime in the 1960s, state and federal reforms ever since have aimed at turning our justice system into a super efficient conviction and incarceration machine. The best way to do that was to eliminate the right to a jury trial by gutting substantive criminal laws so as to remove any room for jurors to exercise any judgment about the seriousness of the criminal activity, and by raising criminal sentences so high that only the most fool hardy would go to trial rather than accept a “plea bargain” on the prosecution’s terms. This of course also eliminate the one way communities could directly check prosecutorial overreach.
Third, violent crime in the 1960s and “terrorism” now, provide an emotional tenor to the justice process that inevitably raises the rhetorical and actual power of the prosecution and pushes it toward an identification of professional dedication with zealousness and down right meanness (think Nancy Grace or any of the female prosecutors on Law & Order over the years).
Fourth, wars are territorial, racializing, and preemptive by their nature. The war on crime has pushed prosecutors from retail dealers in punishment to the kind of racial profiled whole sale targeting of young people of color and young people of any race engaged in activities view as radical.
The prosecution of Aaron Swartz, the brilliant young inventor and free access netactivist who took his own life while in the increasingly threatening grip of a federal prosecution that arose out of his successful efforts to copy large numbers of scholarly articles from jstor for purposes of free access to the public (whose tax money funds almost all of that research and many of the publications themselves), exemplifies many of these features of our persecutorial/prosecutorial complex. (I agree with the analysis in this post which highlights the links between constitutional compromises made early in the War on Crime, and today's overreach).
The federal prosecutors used increasingly wide and expansive definitions of traditionally narrow but highly stigmatized criminal acts, like theft and burglary, to reframe clearly political acts into self interested acts intended to deprive others of their rightful property.
The close integration of federal and state law enforcement, forged during the war on drugs phase of the long war on crime, means that federal can defer to state when that serves their interests (as it appeared to when Swartz was initially handed over to the local Cambridge/Middlesex County court, and the state can defer to the federal as they did when the state indictments were withdrawn in favor of federal charges. This kind of state federal cooperation, so celebrated as an achievement by politicians, effectively guts the local political pressure that is the only accountability on our justice system (see the late William Stuntz’s great final jeremiad, Collapse, for that case).
The expectation that you will plead guilty immediately or face extreme punishment meant that when Swartz balked at pleading and becoming an informant against other members of his movement (oh, did I forget to mention that routinely dangerous, degrading, and actually criminal behavior against your own associates is part of what the government now means by “accepting responsibility” for your crimes), his indictment was superseded more than a year later with a steroidal 13 count indictment that bore no reasonable resemblance to whatever harms or risks his deliberate actions had imposed on others. When he took his own life he had real reason to believe he would spend the better part of his life in prison if he did not finally cave to the prosecutors demands.
This is enabled by a normalization of prison time for even innocuous and sometimes virtuous crimes. Carmen Ortiz, the US Attorney in charge of Swartz’s prosecution later claimed she would have accepted a mere 7 months in prison for Swartz’s plea, but why should incarceration a potentially devastating event even when kept to a minimum ever have been on the table. If deterring Swartz and others from future acts of civil disobedience was the main point, a hefty fine would probably have done the job.
Finally, while Mass Incarceration has a Jim Crow color to it, whiteness is not ultimately a form of immunity, especially when its coupled with radical politics of any kind. The war on crime was framed at moment when riots in cities were linked in the popular and law enforcement mind with radical political activists of all sorts. This is especially true if your activism is reaching and appealing to privileged well educated citizens who have potential political clout. Back in the 1960s new left activists of diverse racial backgrounds began to make considerable in-roads among educated younger people. When largely symbolic acts of violence emerged, the federal government defined most of them as terrorists and killed, exiled, or imprisoned many of them.
What should we do if we are truly appalled by the persecution of Adam Swartz and so many others?
Demand that President Obama and state governors, formally declare the 1960s war on crime over, and announce that with crime at rates lower than it has been since that era, the emergency like basis on which prosecutors and law enforcement agents have operated must come to a close. Justice, restoration, reconciliation and prevention must become the new focus of a rebalanced truly realigned justice system.
Begin to make over-criminalization and persecutorial prosecution a political issue in its own right. Let your local elected district attorney or county attorney know that you support an end to racial profiling, fair charging practices, and an emphasis on alternatives to incarceration and that you are prepared to campaign against them in the next election if you don’t see that happening in your community.
Finally, we need to take seriously Justice Kennedy’s invitation in Brown v. Plata, to place human dignity at the very center of our constitutional vision for criminal law. Prosecutors take an oath to uphold the Constitution. When prosecutors like Carmen Ortiz use the kind of ruthless methods she used against Swartz, even when it does not lead to the tragic end it did here, she not only fails to recognize his human dignity, she violates our right to be represented as the United States in way compatible with our commitment to that value.
ps. for anyone at Netroots, I'll be talking on this topic along with Marcy Wheeler, Elliot Peters (Aaron Swartz's lawyer), and Shayna Kadidal of the Center for Constitutional Rights, today at 3pm. at a session appropriately titled Beyond Aaron's Law.