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.

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.

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."

On Jan. 16, Ms. Ortiz released a statement about her office's role in the Swartz case.

"I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life," Ms. Ortiz wrote. "I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably."

In the Motel Caswell case, U.S. Magistrate Judge Judith Gail Dein on Thursday dismissed the government’s forfeiture action against owner Russ Caswell, ruling that Mr. Caswell took reasonable steps to prevent crime while "trying to eke out an income from a business located in a drug-infested area that posed great risks to the safety of him and his family."

“The Government’s resolution of the crime problem should not be to simply take his Property,” Ms. Dein wrote.

Federal agents first tried to seize Caswell's property in 2009, citing drug seizure laws that were triggered after numerous drug busts at the motel. Caswell's lawyers said the motel owner couldn't be held responsible for the actions of his guests, and even conjectured in court that the government intended to grab the property more for the $1 million it could fetch on the open market.

“It’s bullying by the government," Mr. Caswell told the Boston Herald. "You work for all your life to pay for something and these people come along and think it’s theirs. It’s just wrong. The average person can’t afford to fight this.”

Boston College Law Professor George Brown told the Herald that the Motel Caswell and Aaron Swartz cases could lead to more scrutiny of aggressive prosecutions.

In fact, one member of Congress, Rep. Zoe Lofgren (D) of California, has filed legislation that she calls "Aaron's Law," which would limit prosecutorial power to level felony charges in computer fraud and abuse cases that amount to contract breaches.

Rep. Darrell Issa, (R) of California, chair of the House Oversight Committee, has also vowed an investigation into the Swartz case.

“I’ll make a risky statement here: Over-prosecution is a tool often used to get people to plead guilty rather than risk sentencing,” Mr. Issa told the Huffington Post on Dec. 16. “It is a tool of question. If someone is genuinely guilty of something and you bring them up on charges, that’s fine. But throw the book at them and find all kinds of charges and cobble them together so that they’ll plea to a 'lesser included' is a technique that I think can sometimes be inappropriately used.”

Such "scrutiny is a good thing," Mr. Brown told the Herald. "After all, it is a public office. What’s going on here is a lot of things are happening at the same time that I think are making the public and the bar feel that maybe accountability and transparency is called for at the U.S. Attorney’s office.”