In the sad story of Aaron Swartz, the 26-year-old internet pioneer, organizer, and activist who took his own life on January 11th, many have questioned the doggedness with which federal prosecutors were pursuing him. Swartz, who was under indictment for allegedly downloading a large number of papers from the JSTOR database with the intention of making them freely available online, faced 13 felonies for which he was threatened with up to 50 years in prison. Despite JSTOR itself urging that the charges be dropped, prosecutors apparently insisted on prison time and a guilty plea on all counts as conditions of any bargain.
The general consensus has been that the government sought to make an example of Swartz, and that the case drove his turn to suicide at least in part. The Harvard Law School Professor Lawrence Lessig, a close friend and collaborator of Swartz’s, highlights the seeming injustice of the prosecutorial tenacity:
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.”
In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million-dollar trial in April—his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. And so as wrong and misguided and fucking sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it.
Aaron had become a target for investigation by the federal government. He was on file as a “hacker” who was willing to exploit gaps in the law and in networks in order to make his point… [In the JSTOR case], the Secret Service and US Attorney’s office, led by Assistant US Attorney Stephen Heymann and his boss Carmen Ortiz, had both the discretion and the institutional incentives to run wild on him. And that, with many, many ellipses, is how we got here… The government didn’t need to prosecute a big fish if it could make Aaron look like one. The police don’t need to stop drug kingpins if they can make anyone in a car with drugs look like one. Turning disobedience into felonies becomes the easiest thing in the world. The prosecutors wanted headlines, conviction statistics, promotions, and to make the public feel that computer crime was important and dangerous but something was being done about it. Aaron Swartz, because of his prominence in the tech community and history with PACER and SOPA, was just notorious enough to get the job done. Aaron Swartz was linkbait.
In The Collapse of American Criminal Justice, the late William Stuntz identifies prosecutorial discretion as one of the hallmarks of a criminal justice system that has “run off the rails.” “The system dispenses not justice according to law,” he wrote, “but the ‘justice’ of official discretion.”
As unenforced speed limits delegate power to state troopers patrolling the highways, so too American criminal law delegates power to the prosecutors who enforce it. That discretionary power is exercised differently in poor city neighborhoods than in wealthier urban and suburban communities. Far from hindering such discrimination, current law makes discriminating easy. That sad conclusion has its roots in a sad portion of America’s legal history. When the Fourteenth Amendment’s guarantee of the “equal protection of the laws” was enacted, one of its chief goals was to ensure that criminal law meant one law alike for blacks and whites—that both ex-slaves and ex-slaveowners would be held to the same legal standards, and that crime victims among both groups received roughly the same measure of legal protection. That understanding of equal protection did not survive Reconstruction’s collapse. Today, the equal protection guarantee is all but meaningless when applied to criminal law enforcement, one reason why both drug enforcement and enforcement of laws banning violent felonies are so different in black communities than in white ones.
Stuntz’s focus is largely on the racial inequities of American criminal justice, but the Swartz case highlights the variety of structural inequalities now exploited and enforced by this system. Writing for The Guardian, Glenn Greenwald makes the point more explicit:
Prosecutors are vested with the extraordinary power to investigate, prosecute, bankrupt, and use the power of the state to imprison people for decades. They have the corresponding obligation to exercise judgment and restraint in how that power is used. When they fail to do so, lives are ruined—or ended.
The US has become a society in which political and financial elites systematically evade accountability for their bad acts, no matter how destructive. Those who torture, illegally eavesdrop, commit systemic financial fraud, even launder money for designated terrorists and drug dealers are all protected from criminal liability, while those who are powerless—or especially, as in Swartz's case, those who challenge power—are mercilessly punished for trivial transgressions. All one has to do to see that this is true is to contrast the incredible leniency given by Ortiz's office to large companies and executives accused of serious crimes with the indescribably excessive pursuit of Swartz.
Several members of the United States government have denounced the actions of the prosecutors in this case, and House Oversight Committee Chairman Darrell Issa has begun an investigation:
“I’ll make a risky statement here: Overprosecution is a tool often used to get people to plead guilty rather than risk sentencing,” Issa said. “It is a tool of question. If someone is genuinely guilty of something and you bring them up on charges, that’s fine. But throw the book at them and find all kinds of charges and cobble them together so that they’ll plea to a ‘lesser included’ is a technique that I think can sometimes be inappropriately used.”
Issa has been among the few Republican congressmen who’ve been active in defense of internet freedom, but he also led the inquiry into the “fast and furious” scandal and is known to harbor a degree of contempt for the Obama/Holder Justice Department. For Swartz to have been a pawn in a game of prosecutorial ambition only to then become fodder for partisan jousting would be a disappointment. Clearly, though, the abuse of prosecutorial power is widespread, and, as Greenwald writes, it’s “vital” that it be addressed. “It would be unconscionable,” he writes of the Swartz case, “to decide that this should be simply forgotten.”