Equal Protection of the Law

I’ve been casting about for a way to follow up on my outrage of the government’s treatment of Aaron Swartz.

I wonder if the government’s conduct represents a violation of the equal protection clause of the constitution.

The 14th amendment says

…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Evidently this doesn’t apply to the federal government as written, but in Bolling v. Sharpe in 1954, the Supreme court got to the same point via the Due Process clause of the 5th amendment.

I think all governments, state, federal, and local, are bound to provide equal protection.

In the Swartz case, we have the following mess

  • Congress writes vague laws
  • Congress fails to update those laws as technology and society evolve
  • Prosecutors use their discretion to decide who to charge
  • Prosecutors use pre-trial plea bargaining to avoid the scrutiny of the courts

It would be nice to have a case before the Supreme Court, leading to a clear ruling that equal protection applies to the actions of prosecutors. I suspect that would also give us proportional responses to crimes, although I am not sure about that.

In the medium term, Congress needs to act.  I’d suggest a law repealing all laws more than 20 years old.  Sunset provisions need to be in all laws. The ones that make ongoing sense can be reauthorized, but it will take a new vote every time.  (Maybe laws forbidding action by the government should be allowed to stand indefinitely, while laws forbidding action by the people will have limited terms.)

In the short term, we need action by the executive branch, to provide equal protection, control of pre-trial behavior of prosecutors, and accountability of both prosecutors and law enforcement.

 

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