The Death of Aaron Swartz

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It's usually a mistake to leap to conclusions after a tragedy like the suicide of Aaron Swartz. I know nothing about the details of the case or his state of mind apart from what I've read in newspapers and online. But my unguarded reaction is that the story does seem an instance of reckless prosecutorial excess, and that the prosecutors bear some responsibility for his death.

As Swartz's family said,

Aaron's death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney's office and at MIT contributed to his death. The US Attorney's office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims.

Let's put the worst possible construction on what Swartz did. In other words, don't claim that no crime was actually committed (which is at least arguable); don't call it a harmless prank (as one might be inclined to); forget that JSTOR wanted to take the matter no further once its files had been returned, and that Swartz wasn't acting for personal gain; ignore the issue that he was aiming to highlight -- the question whether it's right to keep scholarly work, undertaken partly at public expense, behind a paywall; never mind that JSTOR has now granted limited free access to its documents. Assume what Swartz did was simple, selfish, unmitigated theft, as the prosecutors appear to think. Even on that ethically brainless view, the charges and threatened penalties were so disproportionate as to be quite unhinged.

But here's the point: Under the present dispensation, they're actually rational. That's why Swartz's family is right to impugn the wider criminal-justice system.

By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. According to the Wall Street Journal, Swartz was offered the choice of pleading guilty and going to jail for six to eight months, or else going to trial and taking his chances. The multiple counts and their absurdly savage sentences are best seen, just as the family said, as instruments of intimidation.

The prosecutor's bottom line, apparently, was that Swartz had to go to jail. In my conception of criminal justice, the prosecutor's role is to establish guilt, not pass sentence. Juries have already been substantially dispensed with in this country. (By substantially, I mean in 97 percent of cases.) If prosecutors are not only going to rule on guilt unilaterally but also, in effect, pass sentence as well, one wonders why we can't also dispense with judges.

In recent years, as the Wall Street Journal has documented in a disturbing series of articles, Congress has enabled prosecutorial intimidation by criminalizing ever more conduct, passing laws that provide for or require extreme sentences, and reducing the burden of proof (through expanded application of "strict liability", where lack of criminal intent is no defense).

"There is no one in the United States over the age of 18 who cannot be indicted for some federal crime," said John Baker, a retired Louisiana State University law professor... "That is not an exaggeration."

And if a prosecutor should turn his righteous all-powerful gaze on you, you're done for. In this system, everything depends on the moderation and good sense of prosecutors. We see how well that worked in the Swartz case. Most no doubt strive to live up to those standards, but what about the ones that don't? Where's the accountability? What about crusaders for "justice" with half their minds on their next career in politics?

As a foreigner, I'm surprised that Americans aren't more alarmed by the workings of their criminal justice system. I don't know what ought to scare me more about living in the United States--that I might be the victim of a crime (which happens), or that this ferocious prosecutorial system might one day turn its wrath on me. I'd rather be mugged than threatened with years in jail for something I didn't even know was a crime. Is this justice system actually on my side? I'm by no means sure--an astounding state of affairs.

At a conference I attended recently, I vented my preoccupation with rogue prosecutors, an ever-proliferating criminal law and the vanishing rights of the accused on a fellow attendee--a lawyer and former prosecutor. When I'd said my piece she said, "But you have to remember that nearly all of the people who are prosecuted are guilty." For half a second I thought she was joking and I started to laugh. But she wasn't joking.

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