Prosecutorial excess

If  Aaron Swartz’ intended to become a martyr with his suicide, he may have been successful. I suspect he chose to die simply because he couldn’t face living, and that his martyrdom was unintentional. A number of advocates for a number of causes are turning the tragedy into what they hope will be a triumph in their struggles for change. Aaron’s story is being written as a lesson about the justice system, and of course there are lessons to be learned here. But the reason he ran afoul of the law, the specific acts he performed that related to information freedom and the commons, the copyright practices that restrict access to scholarly work and inflate the costs of education–these things are being lost in the political narrative that’s emerging. Before we look at the issue of prosecutorial excess, let’s remind ourselves of Aaron’s commitment to the Freedom to Connect and some of the complexities of the intellectual property problems that helped to drag him down. Here’s Andrea Seabrook’s report…

The federal prosecutor dropped the charges against Aaron the day before his funeral. (Does that count as a tie in her Won/Lost statistics?) The gesture was lost on Aaron’s family, who said Aaron’s death “…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.” It seemed clear to the family and many of his friends that the prosecutor had over-reached in Aaron’s case, had in fact driven him to suicide. No less a legal light than Larry Lessig, normally mild and even tempered, weighed in with harsh criticism. Aaron, Lessig wrote,

…was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

The American criminal justice system is worse than imperfect. It is adversarial, each case a trial by combat, defense attorneys and prosecutors jousting before a judge and–infrequently–a jury who will determine the victor. Elaborate criminal codes, precedents, and judicial rules and guidelines describe the boundaries within which the serious game is played. Many, perhaps most, lawyers will agree that the US Attorney’s Office dealt properly with Aaron. Orin Kerr, writing at The Volokh Conspiracy offers a detailed two part post about The Crimimal Charges Against Aaron Swartz.

In Part One, The Law, he concludes that “…the charges against Swartz were based on a fair reading of the law. None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach. All of the charges were based on established caselaw. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged.”

In Part Two, Prosecutorial Discretion, Kerr writes, “I think that some kind of criminal punishment was appropriate in this case. Swartz had announced his commitment to violating the law as a moral imperative in order to effectively nullify existing federal laws on access to information. When someone engages in civil disobedience and intentionally violates a criminal law to achieve such an anti-democratic policy goal through unlawful means — and when there are indications in both words and deeds that he will continue to do so — it is proper for the criminal law to impose a punishment under the law that the individual intentionally violated. (Indeed, usually that is the point of civil disobedience: The entire point is to be punished to draw attention to the law that is deemed unjust.)”

Kerr addresses a range of legal questions and issues and I find it hard to disagree with him. But, there seems to be a meaningful issue that the best legal minds avoid. How fair was the prosecutor in the way she played the game? It’s not a question that we often consider. Are prosecutors required to play fair? We have judges and referees to keep both sides in line. But Aaron had a point to make. In order to make his point he needed to have a fair hearing. To get a fair hearing for his victimless crime, he was asked to risk thirty-five years of his life and be branded a felon. The prosecutor offered Aaron a choice. She was willing to drop Aaron’s risk of incarceration to a mere six months, to accept a plea bargain. Aaron could brand himself a felon by pleading guilty, and he would have been denied any hearing whatsoever. In the context of the prosecutor’s daily work, this may have seemed fair, but I think the prosecutor’s balls to the wall approach effectively denied Aaron Swartz a hearing and therefore it denied him justice, and that depressing circumstance cost him his life.