Kurt  Schlichter

If you think a twenty-something ought to be tossed in federal prison for 35 years because he tried to download some musty academic journal articles without permission, you are a lot things, but a conservative is not one of them.

You might be relieved to know that Aaron Swartz, one of the internet geniuses behind RSS and Reddit.com, will not be imprisoned for a third of a century. Unfortunately, that’s because the fragile young man hanged himself after the United States attorney prosecuting the case generously offered him the alternative of pleading guilty to a felony, paying a crippling fine and going to prison for six months.

I guess we can all rest easier knowing he’s no longer a looming threat to the American way of life.

This is a disgrace. We should be ashamed that this is happening in our name – and conservatives should take the lead in putting a stop to it.

If this was an isolated case, that would be one thing, but the explosion of new and ridiculous federal crimes, compounded by prosecutors who have lost all sense of perspective and are not held accountable, puts every American at risk. As law professor Glenn Reynolds, the legendary Instapundit, has observed, most Americans commit several felonies a day. They just don’t know it, and that’s simply unacceptable in a free society.

Part of the reason is Congressional laziness, where the folks paid to debate, consider and make laws simply delegate away their responsibility to bureaucrats in federal agencies who issue idiotic regulations with the power of criminal statutes. This is how it came to become a federal crime, punishable by a fine and prison, to jailbreak your own smartphone.

Seriously - jail for jailbreaking. When did our criminal justice system become an enforcer for giant corporations? If you have a dispute with a customer, you sue him – you don’t send the cops to haul him off to the slam.

Americans should not live in fear that innocuous activities will end up up-ending their lives, emptying their bank accounts and costing them their freedom. Be careful not to help an injured woodpecker – you might be breaking the law against harassing migratory birds. Heaven forbid you have an eagle feather – there’s another crime. Better be sure that you aren’t a rock n’ roll Ernst Stavros Blofeld like those Bond villains at Gibson guitar, who allegedly possessed imported wood that might not have been harvested in strict accordance with Indian woodcutting statutes. Nope, ignorance of the law is no defense – even if the law was promulgated in Mumbai.

Well, I know I feel safer.

Instead of a government of laws, we are becoming a government of regulations, and opaque and indecipherable ones to boot. Making it even worse is the fact that many are “strict” liability statutes – the federal prosecutors do not even need to prove that you intended to commit a crime. So you are just as guilty of a felony for having an eagle feather you picked up off the forest floor as one you plucked off the bald-headed national symbol you just shot.

Worse, prosecutors have nearly unlimited discretion in choosing what charges to file. This leads to “overcharging” – piling on so many charges that a defendant is forced to plead guilty to something because he justifiably fears that one of the multitude of criminal counts will stick even if he’s innocent. Our system took a turn in the wrong direction when getting convictions supplanted doing justice. Sometimes, justice means dismissing a case, or better yet, not filing it in the first place.

You might wonder why citizens don’t stop this insanity at the grand jury level, where a panel of citizens hears evidence before issuing an indictment. Except that today this centuries-old procedural safeguard is little more than a sham. Prosecutors joke about how any one of them worth his salt can get a grand jury to indict a ham sandwich. Maybe I just don’t have much of a sense of humor about things like the abrogation of our fundamental rights, but that joke just isn’t funny.

We need reform, desperately, and that reform should be led by conservatives. No one is harder on crime – real crime – than us, but there is no more conservative cause than returning our justice system to a condition where the “justice” part takes precedence over the “system” part.

It’s good politics too. Young people today famously support Obama and his progressive pals, but liberals have taken the lead in criminalizing everyday activities through mindless regulation and at the behest of their contributors in Silicon Valley and Hollywood and among the environmentalist whackos.

How about Congress withdraw the power of the agencies to determine what is and what isn’t a crime – you know, the way the Framers of the Constitution intended? Why not require that prosecutors prove the element of specific intent for every crime?

For those laws that remain after we scour the United States Code and excise the ones designed to save Verizon and other corporations the trouble of suing in civil court, let’s set sentences that – as my mother, a former prosecutor and hard-nosed judge, used to say – “temper justice with mercy.”

Let’s also empower our juries to do the job they are supposed to do – hold the government accountable and make sure it meets the high “beyond a reasonable doubt” standard to take an American’s liberty. How about letting defendants present exonerating evidence to grand juries? And let’s require that prosecutors disclose plea bargain proposals to the jury – the jury Swartz never faced might have been interested that the U.S. attorney asking them for 35 years was willing to settle for six months.

Our federal government is supposed to be limited, but nowhere is it becoming less limited as quickly as in the criminal justice arena. Conservatives, it’s time to strike a blow for conservative principles while also showing demographics that dismiss us as borderline fascists which side protects freedom, and which side stands for a corporate/special interest police state.

Finally, we as citizens need to stand up and do our job as jurors. If we do, prosecutors will be rightly afraid to even dare to present a case to us like the one against Aaron Swartz. It’s time to acquit the ham sandwich.


Kurt Schlichter

Kurt Schlichter (Twitter: @KurtSchlichter) was personally recruited to write conservative commentary by Andrew Breitbart. He is a successful Los Angeles trial lawyer, a veteran with a masters in Strategic Studies from the United States Army War College, and a former stand-up comic.