Federal Prosecutors' Unchecked Power and Zeal Creates Prison Nation

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3. Going after low-hanging fruit, not the rich and powerful.

Progressives often wonder why federal prosecutors have not done more to go after white-collar crime, to offset the institutional racism of a system that imprisons far more people of color and poor people than whites. The global financial crisis created by Wall Street’s gambling in real estate and equity markets underscores this enduring question.

In late 2009, the Obama administration created the Financial Fraud Enforcement Task Force. Its website describes several hundred convictions for financial crimes such as “mortage scams that target the elderly, Ponzi schemes that shock the world, procurement fraud that steals money from our nation’s coffer, predatory lending that discriminates against vulnerable communities, securities fraud that undermines the trust and transparency of our markets.” In 2012, “fraud” accounted for 10.5 percent of prosecutions.

But some longtime criminal defense lawyers say they are not going after the most pivotal institutional players as aggressively as other categories of offenders. 

“They didn’t go after much of anybody on Wall Street, where selling a stock that you know is valueless is a fraud—that’s a federal felony,” said Miles Gerety, a retired senior state public defender in Connecticut. “If you can prove that somebody called it ‘crap’ and is selling it, that’s a felony.”

Gerety said that he knows several federal prosecutors who were content to have Wall St. traders banned from the investment business for life instead of imprisoned.

Harvey Silverglate, the criminal defensew attorney and author whose books criticize federal prosecutorial excess, said many of the most egregious behaviors were legal—because financial industry lobbyists convinced Congress to gut consumer laws, just as the operators of privatized prisons are now lobbying Congress to increase federal minimum sentences. “It’s a political problem more than a legal problem,” he said.

The political arena also influences prosecutors in another important way—when not to bring cases, Columbia University’s Richman said, citing gun trafficking crimes. In 2012, firearms offenses accounted for 10 percent of federal prosecutions.

The National Rifle Association’s propaganda, in concert with right-wing demonizing of the Bureau of Alcohol, Tobacco, Firearms and Explosives—after it botched a weapons-tracing investigation in Mexico—has curtailed prosecution of gun trafficking crimes, he said. The result is that the majority of federal gun prosecutions involve charges of lone individuals acting violently with guns, but backing away from prosecuting firearms dealers or people trafficking the weapons.       

4. Using the office as a stepping-stone to other offices.

Given the unbridled power of federal prosecutors, it’s not surprising that the post is seen as a stepping-stone to higher office. And indeed, some prosecutors politicize their office or use it as a publicity tool for other public posts.

That is the accusation from the attorney for Aaron Swartz, an open-democracy advocate and developer of Reddit who committed suicide in January at age 26 in the wake of Massachusetts Assistant U.S. Attorney Stephen Heymann pursuing jail time for his downloading of millions of scholarly articles from an academic database at M.I.T.

Elliot Peters, Swartz’ attorney, said Heymann’s insistance on six months jail time was part of pursuing “juicy-looking computer crime cases and Aaron’s case, sadly for Aaron, fit the bill.” In an extensive New Yorker profile, Peters said it was absurd that Heymann contended the academic articles were worth $2 million.

“I said, ‘What he took from JSTOR wasn’t worth anything! It was a bunch of, like, the 1942 edition of the Journal of Botany!’ The idea that Aaron should be sentenced the same way as someone who tries to beat someone out of two million dollars in a security-fraud scam? Someone who steals money from people?”