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By: Barry Kort Sun, 10 Feb 2013 03:20:50 +0000 We need a national dialogue on the practice of piling on charges to coerce defendants into accepting unjust plea bargains.

The prosecution was apparently in the business of annihilation. Swartz faced spiritual annihilation and financial annihilation, with no viable means of escape. To my mind, our justice system is out of control. The prosecution took leave of their senses. Unfortunately, this kind of tragedy is all too commonplace, and most of the time goes unreported.

The suicide of Aaron Swartz in the face of the appalling over-reach of unchecked discretionary prosecutorial power highlights a much larger problem that pervades our legal system.

The entire US legal system (including criminal, civil, and family court divisions) is routinely used in an outrageously abusive manner.

Those who are traumatized, stigmatized, or victimized by such shenanigans within the legal system may suffer what has come to be called Legal Abuse Syndrome.

In the field of Medicine, every proposed treatment or cure has to be carefully studied and reviewed to ensure that it has demonstrated therapeutic value, and does not inadvertently spread, exacerbate, or even cause the malady it sets out to treat. In the medical literature, a treatment is called “iatrogenic” if it is counter-productive to the primary objective of curing disease.

The field of Law does not employ such safeguards, and as a result a substantial fraction of our public policies and practices, operating under the color of law, turn out to be iatrogenic — ineffective at best and counter-productive at worst.

Alan Simpson, the retired Senator from Wyoming, spent some three decades in Congress, during which time he helped craft and enact a great deal of legislation. But after he retired, he remarked that during his tenure in Washington politics, he discovered a law, the way a scientist would discover a natural law. Simpson said he discovered the Law of Unintended Consequences, meaning that the actual outcome of legislation, passed in good faith with an expectation of curing one of society’s ills, frequently turned out to have unanticipated, unexpected, and undesirable consequences. In science, if one is relying on a theoretical model, and the actual outcome of an experiment does not jibe with that predicted by the model, one is obliged to discard the model as unreliable.

Our governmental systems are rife with unreliable models which give rise to unwise practices, many of which are ineffective at best and counter-productive at worst. We have built governmental systems that lack viable safeguards against iatrogenic treatments of many of our most problematic social ills.

Here is an example of the kind of scholarly article one might find on JSTOR (which recently relaxed its policies to make many more of them freely available without a costly institutional subscription).

Punishment and Violence: Is the Criminal Law Based on One Huge Mistake?” by James Gilligan, Harvard University; published in the Journal of Social Research, Fall 2000.

If more people had been familiar with that remarkable piece of scholarship from Harvard University, Aaron Swartz would very likely be alive today.