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Aaron Swartz and Motel Caswell: Book ends to prosecutorial reform?

A judge this week dismissed a drug forfeiture case involving a motel owner. The prosecutor, US Attorney Carmen Ortiz, is also facing criticism for her role in the prosecution of Internet hacker Aaron Swartz, who committed suicide earlier this month.

U.S. Attorney Carmen Ortiz reacts during a news conference in Boston Jan. 17 as she speaks regarding her office's handling of the case against Internet freedom activist Aaron Swartz. Ortiz has been sharply criticized following Swartz' suicide for her office's handling of the hacking case against him.

Elise Amendola/AP

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A judge this week struck down a US government scheme to seize a Tewksbury, Mass., motel because it had become a haven for drug dealers, bolstering concerns about whether US prosecutors in some cases have too much power.

The decision in the long-running forfeiture case comes as the US attorney in Boston, Carmen Ortiz, is already under fire for her role in the death of Internet hacker Aaron Swartz, who killed himself on Jan. 11 as he faced a potentially long prison term for what many in the technology field have noted was nothing more than a breach of a contract involving Internet documents.

The two cases are feeding a simmering groundswell among constitutional law professors and others about the inherent discretionary powers of federal prosecutors, especially in an era of books like attorney Harvey Silverglate's "Three Felonies a Day: How the feds target the innocent."

"[M]ost of the time, prosecutors can be expected to exercise their discretion soundly," writes University of Tennessee constitutional law professor Glenn Reynolds, in a Jan. 20 paper called "Ham Sandwich Nation: Due process when everything is a crime."

“Unfortunately, these limitations on prosecutorial power are likely to be least effective where prosecutors act badly because of politics or prejudice,” professor Reynolds writes.


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