Natty Shafer Law

Utah lawyer for criminal and immigration cases

Prosecutorial Discretion, Part 1: Introduction


The Aaron Swartz story has highlighted the immense power prosecutors have in the justice system. For those who are not familiar, he faced federal prosecution for downloading millions of articles from “JSTOR,” an online source for academic articles, and for improperly using the Massachusetts Institute of Technology (MIT) computer system to download those articles. On January 11, he hanged himself after being unable to reach a plea resolution with the federal prosecutor, who insisted that he plead guilty to all 13 felony counts and that he spend at least 6 months in jail.

In a public statement, his family referred to the proceedings as “prosecutorial overreach.” Swartz had an account with JSTOR, but he exceeded JSTOR’s limits on the number of articles he could download by using a program called “keepgrabbing.” After he was caught and he returned his copies to JSTOR, JSTOR’s attorney asked the prosecutor to drop the charges. However, MIT was also a party and did not push for a dismissal. If Swartz had been convicted at trial, the prosecutor would have asked for at least seven years in prison and could have gotten as many as 35.

A prosecutor has an ethical duty above and beyond that of most lawyers and must be a “minister of justice” and not just an advocate. As part of their prosecutorial discretion, they have the power to decide who to prosecute and what charges to bring. No matter how much someone may desire a prosecutor to pursue a case, a prosecutor can and should decline to do so if they don’t think it is in the interest of justice. (This can be particularly frustrating for victims who find they have no way to force a criminal case to go forward.)

If we believe prosecutors will use their power for good, prosecutorial discretion is not a problem. Prosecutors are either directly elected, or someone who is elected appoints them. In Utah, each county elects their district attorney, and the district attorney is in charge of hiring and prioritizing assets, such as which crimes to prosecute. Making a prosecutor a political position has advantages and drawbacks. On one hand, it makes prosecutors accountable to the people, but on the other hand, it can politicize decisions and force prosecutors to pander.

It is now common for prosecutors to use a kitchen sink sort of approach to charging defendants because it makes it appear they are tough on crime. A prosecutor throws every charge against a defendant that they could theoretically prove; they seldom charge just the serious charges or the charges they are sure they can prove. As I have mentioned before, everything is a crime now so a prosecutor can indict nearly anyone if they are determined. It is literally impossible for anyone, lawyer or layman, to know whether every action is legal. Many crimes are not even intuitively wrong, but are rather administrative crimes. Swartz was charged with 13 felonies because the prosecutor knew that most juries would find him guilty of at least one of the charges. The more times jurors have to say “not guilty,” the more they feel like they are saying they morally approve of the defendant’s conduct.

Another part of a prosecutor’s discretion is whether to offer or not offer a plea deal, and to decide the terms of a plea offer that they will accept. Unfortunately for Swartz, the prosecutors in his case refused to accept any deal that did not involve jail time.

Author: Natty Shafer

Attorney practicing immigration and criminal law

2 thoughts on “Prosecutorial Discretion, Part 1: Introduction

  1. Pingback: Prosecutorial Discretion, Part 2: Plea Bargaining in the Modern Justice System « The Lawyer Who Hugs

  2. Pingback: The Hidden Costs of Pleading Guilty | Natty Shafer Law

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