Our Legal System Didn't Give Aaron Swartz a Chance

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The Justice Department's pursuit of the 26-year-old internet activist for a victimless crime points to an ugly truth about prosecutorial abuse.

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Swartz in 2008 (Noah Berger/Reuters)

Federal prosecutors wanted to make an example of Aaron Swartz and they succeeded. Their wildly disproportionate treatment of his victimless trespasses exemplified the Justice Department's disregard for fairness, decency, and the fundamental rights of the citizens it's supposed to serve. Swartz's prosecution was notable not because of its cruel over-zealousness, which is horribly routine, but because it involved a gifted, idealistic, emotionally vulnerable defendant, with a sophisticated and relatively powerful constituency that has the means to make itself heard.

He was not the first person to hang himself in the wake of abusive, even sadistic federal prosecution, and he may not be the last. (You can read about the case of the "posthumously vindicated" Dr. Peter Gleason here.) But Swartz's suicide may be the first to generate widespread sorrow and outrage over common prosecutorial tactics that put ordinary as well as extraordinary citizens at risk. The increasingly voluminous federal criminal code, the vagueness of its individual offenses (numbering about 4,500 in 2007), and its harsh mandatory minimum sentences -- combined with failures of Justice Department leadership -- regularly expose law-abiding Americans to prosecution for activities they have no reason to consider illegal.

In his book Three Felonies a Day, veteran defense attorney Harvey Silverglate warns that "the trend of ambitious prosecutors exploiting vague federal laws and pursuing criminal charges instead of more appropriate civil actions" makes potential criminals of us all.  Redundant indictments for multiple offenses flowing from a single act -- and threats of lengthy, life-destroying sentences -- enable prosecutors to extort pleas from innocent or not-terribly-guilty defendants. It is often "nearly impossible for normal, rational, self-interested, calculating people to risk going to trial," Silverglate observes.

Moreover, the minority of people willing to take that risk may be deprived of the means to do so by pretrial orders freezing any assets allegedly generated by their alleged offenses.

So, as a practical matter, federal prosecutors have the power to neutralize your right to a trial and presumption of innocence. As Silverglate demonstrates, they regularly coerce pleas. Aaron Swartz had the "choice" of pleading guilty to 13 felonies (which he and many others did not believe he had committed) and accepting a four-month prison sentence or going to trial (at an estimated cost of about $1,000,000) and risking a 35-year sentence. He opted out.

Will his martyrdom matter to the justice system? Maybe a little. This case should, and perhaps will, damage the reputation of Boston U.S. attorney Carmen Ortiz, undermining the political ambitions she is believed to harbor. (Ortiz is mentioned periodically as a potential gubernatorial candidate, to the dismay of civil libertarians highly critical of her record.) The Swartz case should also invigorate efforts to narrow federal computer crime law.

But one case alone, no matter how grievous or widely lamented, will not change the entrenched habits of abusive prosecutors who operate out of public view in most cases. One case will not persuade the president or attorney general to enforce high standards of fairness and integrity throughout the Department of Justice (in the FBI as well as U.S. Attorney offices). One case will not shake bipartisan congressional support for harsh, redundant, elastic criminal laws. It will take much more than one case to dispel the fear of seeming soft on crime and tough on deprivations of liberty.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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