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EDITORIAL: The plea bargain danger

Reflection needed over an unethical prosecutorial tool

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When someone from the government says he's just trying to help, watch out -- especially if he's offering a plea bargain. The deals often aren't worth taking -- or worse.

When the innocent, for whatever reason, become wrapped up in a prosecution, the government won't back off. In some cases, these supposed public servants break out the most unethical trick of all: holding the threat of a long prison sentence to discourage innocent defendants from embarrassing the government by proving their innocence in a courtroom.

Reddit.com founder Aaron Swartz found himself in this position. He thought that certain types of information should be liberated, so he went about downloading a large set of publicly accessible academic journal articles from an online database, using the Massachusetts Institute for Technology (MIT) computer network.

This harmless act -- the academic journal didn't want Swartz prosecuted -- was converted into a major crime by the U.S. attorney for Massachusetts, who threatened him with millions of dollars in fines and up to 50 years in prison if he was found guilty of wire fraud and computer fraud.

Swartz was offered a deal that would have meant admitting guilt and spending time behind bars, or risking the rest of his life in prison. Instead, he killed himself. When asked about it at a Senate hearing, Attorney General Eric H. Holder Jr. said, "There was never an intention for him to go to jail for longer than a three, four, potentially five-month range." This glib answer was too much for Sen. John Cornyn, Texas Republican, who questioned the propriety of threatening someone with 50 years in prison just to get him to agree to few months in prison. Mr. Holder was adamant, defending this squalid tactic as a "good use of prosecutorial discretion."

Such bullying has become business as usual, routinely used to deny defendants their day in court. The National Center for State Courts found that the percentage of felonies taken to trial in nine states fell to 2.3 percent in 2009, from 8 percent in 1976.

A California Law Review examination of federal court data found 86 percent of cases between 2003 and 2009 were resolved with a guilty or no-contest plea. In the few cases that dared go to trial, one out of every five defendants were acquitted.

Plea bargains don't give the innocent much chance to clear their names, which tilts the scales of justice heavily in favor of the government. In a 5 to 4 decision last year, Supreme Court Justice Antonin Scalia questioned the basic framework of the system, writing that prosecutors are "incentivized" to charge defendants with so many crimes that it "effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense." Justice Scalia's dissent pointed out the only reason this broken system survives is that lawyers insist criminal justice would "grind to a halt" without it.

Mr. Holder's defense of the U.S. attorney's handling of the Swartz case is the latest example of how low the government will go for a conviction. It's a sign the lawyers and judges should come to a full stop for reflection. If the Justice Department won't clean up its act, Congress should force a re-examination of the plea bargain system.

The Washington Times

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