02/01/2013 05:14 pm ET Updated Apr 03, 2013

Sentences So Long They Scare Us to Death

The tragic suicide of Aaron Swartz has prompted long overdue reflection about the power of federal prosecutors. It has also unleashed a great deal of anger, mostly directed at Carmen Ortiz, the U.S. Attorney who relentlessly pressed federal computer fraud charges against Swartz. One aspect of the tragedy, however, bears more scrutiny. Our lawmakers have armed prosecutors with the tools they use to frighten defendants into forfeiting their constitutional right to a trial: excessively harsh sentences. Prosecutors use the threat of decades in prison to exact what is called the "trial penalty." Admit your guilt and we'll cut you a break, but go to trial and we will throw everything we have at you. Lawmakers have made sure that prosecutors have lots to throw.

Consider these cases and how they compare to the Swartz prosecution:

  1. Ronald Thompson was a 62-year-old Vietnam veteran who fired two warning shots into the dirt to frighten away some teenagers who were threatening his elderly neighbor. The Florida state prosecutor, Angela Corey - known for her leading role in the prosecution of George Zimmerman for allegedly killing Trayvon Martin - offered Thompson a plea deal: Admit your guilt and serve three years in prison. Thompson maintained his innocence and exercised his right to a jury trial. After a jury found him guilty, he was sentenced to a mandatory minimum of 20 years.
  2. Jamie Olis was a senior director for tax planning at Dynegy. In 2003, he and his boss were indicted for a300 million accounting fraud. Olis's boss, who supervised and approved his work, pleaded guilty and testified against Olis. He received a sentence of 15 months in prison. Olis was convicted at trial and was sentenced under the federal guidelines to 24 years in prison. He appealed his sentence, won, and was ultimately resentenced to six years in prison.
  3. Weldon Angelos sold marijuana on several occasions while wearing - but never using - a firearm. This first time offender, father of two young children, was offered a 16-year plea deal which he refused. Because he chose to exercise his right to trial, federal prosecutors charged him with crimes that, had he been convicted of all of them, would have sent him to prison for a minimum of 105 years. He was convicted of enough to send him to prison for a mandatory minimum term of 55 years.

Thompson, Olis, and Angelos were all threatened with criminal penalties that the prosecutors themselves knew far exceeded the harm they caused. How do we know that's true? Their plea offers. Thompson was offered a plea deal of just three years. Olis's boss took a deal that resulted in a 15-month sentence (23 years shorter than Olis's prosecutors originally secured for Olis). And Angelos was offered 16 years, fully 89 years less than the 105 years government attorneys went for once he turned them down.

Any argument that these defendants posed the danger suggested by the decades-long sentences the prosecutors sought was completely blown up by those plea offers. No matter. When defendants refuse to play ball, laws on the books provide government lawyers more than they need to punish and make them examples.

If Aaron Swartz, who reportedly turned down a six-month plea deal, had been convicted at trial, he faced up to a three-and-a-half decade stint in federal prison. That threat appears to have led to his tragic suicide.

To those who would direct their ire at Ortiz, realize that this kind of prosecutorial bullying happens every day and is enabled by laws our elected representatives pass. Those laws authorize and sometimes - as in the case of the mandatory minimums in the Thompson and Angelos cases -- require outlandishly long sentences.

In recent decades, our sentencing laws have become more punitive and frequently call for sentences grossly out of proportion to the harm they punish. These laws have become a club that prosecutors can wield as they seek to earn convictions. Today, nearly 98 percent of people charged in federal court plead guilty. That should come as no surprise.

I have seen this power used for years in drug cases where most of our nation's worst mandatory minimum sentencing laws apply. The threat of decades-long prison sentences convinced defendants to forfeit their right to a trial. Outlandish sentences now have become the norm in other areas as well, such as in white collar criminal cases where Congress has ensured that sentences have been increased exponentially in recent years. Law professor Ellen Podgor noted, "The risk of trial becomes so great that in order to minimize the possible consequences innocence becomes an irrelevancy. Although the plea bargain to trial differential existed for many years in crimes outside the white collar crime context, the high sentences now being given to individuals and entities charged with white collar crimes place those crimes in comparable stead with street crimes."

Which brings us back to Aaron Swartz. It was shocking that he forfeited his life in the face of prosecutors' threats. While members of Congress are, justifiably, calling on the Department of Justice to account for prosecutorial overreaching, we believe that some honest congressional soul searching is also in order. It is in lawmakers' power to remove the blunt force tools of excessive sentences and mandatory minimums from the hands of prosecutors. Rather than trying to legislate the exercise of executive discretion, policy makers can and should help channel it by ensuring that the sentences offenders face fit the crimes they are accused of committing and that judges have discretion to impose them. The sentencing laws are the problem lawmakers can fix.