The tragic recent suicide of Reddit co-founder Aaron Swartz in the face of an aggressive federal computer-hacking prosecution has ignited a healthy discussion about overcriminalization of the law and prosecutorial overreach in its enforcement.
The U.S. Attorney’s Office in Boston has found itself responding to critics of the Swartz prosecution from the media and Capitol Hill, while a short but worthwhile article with a catchy title — "Ham Sandwich Nation: Due Process When Everything Is a Crime" — by University of Tennessee Law Professor Glenn Reynolds, has brought this simmering issue of great import into the mainstream. Meanwhile, diverse organizations such as the National Association of Criminal Defense Lawyers, the Heritage Foundation and the Federalist Society have been studying the problem for years.
The number of federal criminal laws is staggering, causing author Harvey Silverglate to estimate that the average American unwittingly commits three felonies a day. According to Radley Balko at The Huffington Post, in "The Power of the Prosecutor," by most estimates there are at least 4,000 separate federal criminal laws, with another 10,000 to 300,000 regulations that can be enforced criminally (yes, that’s quite a spread).
The Dodd-Frank bill, by one estimate, contains more than two dozen new or expanded criminal provisions. Aside from the sheer number of criminal laws and regulations criminally enforced, many of them have watered down mens rea (i.e., guilty mind) requirements that easily can become traps for the unwary.
According to a joint paper released in 2010 by the NACDL and the Heritage Foundation, the 109th Congress (2005-06) proposed 446 nonviolent criminal offenses, and 57 percent of them did not have a mens rea requirement. That same Congress passed 23 new criminal laws without a mens rea requirement, subjecting individuals to public criminal charges, ruinous legal fees, reputational damage, fines and, worst of all, imprisonment, without any intent to violate the law.
There is a litany of recent examples of questionable prosecutions, either because the law itself contains ambiguity or the exercise of prosecutorial discretion seems misplaced. Of course, the need for sound prosecutorial discretion is at its highest when the laws on which a crime might be charged are more complex, vague or simply regulatory in nature.
• Dr. Peter Gleason was indicted, arrested, convicted and his assets seized by the federal government for providing truthful information about the "off-label" use of a drug to other physicians on behalf of a drug company. In December, the U.S. Court of Appeals for the Second Circuit reversed the conviction of Gleason’s co-defendant, Alfred Caronia, concluding that communicating truthful information about the unapproved but legal use of a prescription drug was protected commercial speech. The Caronia decision finally represents a court’s assessment of a key element of the Justice Department’s questionable theory for prosecuting pharmaceutical manufacturers and their employees for off-label marketing of prescription drugs, which has netted the department multiple criminal pleas and billions of dollars in penalties from drug companies that could not shoulder the risk of fighting. Unfortunately, Gleason never lived to see himself vindicated; he committed suicide in 2011, after five years of fighting for his freedom, his good name and his ability to practice medicine.
• Former Senator and Democratic presidential contender John Edwards was charged and tried for multiple election law violations after allegations came to light that wealthy benefactors of Edwards’ campaign paid his mistress hush money to keep their affair quiet. The prosecution was ill-fated from the start, based upon a flawed legal theory that failed to connect the expenditures to the Edwards campaign, and a "star" witness who somehow appeared to be as much of a scoundrel as Edwards himself. Edwards was acquitted after a trial that focused more on his affair than on the alleged campaign finance violations (because there weren’t any).
• The FDA and DOJ have revived the "Responsible Corporate Officer" doctrine to prosecute individuals in upper management of pharmaceutical companies in the absence of any evidence of criminal intent or even knowledge of wrongdoing. This charge, essentially "guilt by breathing," represents a dangerous expansion of criminal law, imputing criminal liability for a misdemeanor on upper-level managers who had the authority but failed to prevent an underlying violation even if they were unaware of it. Such charges can be career-ending, not just in themselves but also by opening the door to exclusion from the Medicare and Medicaid programs.
This is exactly what happened to three executives from Purdue Pharma after they pled guilty to misdemeanor misbranding under the "Responsible Corporate Officer" doctrine for failing to prevent felony misbranding of Oxycontin by the company. Last summer, the U.S. Court of Appeals for the D.C. Circuit upheld the executives’ exclusion from Medicare and Medicaid as a result of their pleas, although it rejected the length of the exclusion (12 years) that the government had imposed.
Cases such as these represent the minority; in the large majority of cases, there is a more articulable violation of law or prosecutors will exercise restraint when presented with a borderline case where the subject’s intent is questionable. But who wants to count on that?
The stakes in criminal prosecutions could not be higher, and too many laws with too little specificity invite too much mischief in the exercise of prosecutorial discretion. The system should not permit prosecutors to target a person first (for political or any other motivation), and then to find a crime with which to charge him or her; with the number of crimes on the books, they surely will find something that arguably applies.
Reynolds offers some common-sense recommendations to moderate the awesome power of the state. For one, he suggests altering the judicially constructed absolute immunity that prosecutors enjoy to a qualified immunity, dependent upon the prosecutor’s good faith in bringing the charges. He also suggests expanding the quite limited "loser pays" rule, which would force the government to pay all or a large portion of an acquitted defendant’s legal fees.
More controversially, Reynolds suggests banning plea bargains altogether, which would undermine the ability of prosecutors to use their enormous leverage to transform a weak case into a guilty plea and put them to their proof, but also prevent the many plea bargains that the government and defendants enter into that represent a fair outcome based upon each party’s clear-eyed assessment of the facts, the law and the likely outcome of a trial.
Reynolds also asks whether regulatory violations should be subject to criminal sanctions at all. This point dovetails with the recommendations of the joint NACDL-Heritage study from 2010. Those recommendations focused upon the legislative process, including codifying the rule of lenity (granting defendants the benefit of the doubt when a law is unclear), and enacting default rules of statutory interpretation to ensure that guilty-mind requirements are sufficient to prevent against unjust convictions.
It would be tough to scale back our overcriminalized society. There never seems to be much political will for repealing criminal laws, no matter how ineffective or confusing they might be, or for stepping back from full-throttle prosecution. Ironically, the Swartz prosecution does not seem to be a classic case of either a vague law or an overzealous prosecution leading to unwarranted criminal charges. (See the analysis by Orin Kerr on the Volokh Conspiracy legal blog.) But by the questions raised in the aftermath of its tragic outcome, it has provided an opportunity for us to look at our criminal laws, and how the Justice Department does its business and whether it lives up to its name.
The proposals above are worth strong consideration; I’m sure there are many others. But the contours of the debate should reflect the essence of justice and due process, namely that the laws be clear and provide adequate notice of what they proscribe, and that criminal prosecution and punishment be reserved for those who are truly criminally culpable. •
Scott A. Coffina is a partner at Drinker, Biddle & Reath in Philadelphia and Washington, D.C. He is a former assistant U.S. attorney and former associate counsel to President George W. Bush.