Friday, January 18, 2013

Good & Mad Reading: Meet Aaron Swartz

By now, many of you have probably become familiar with the tragic case of Aaron Swartz, a computer prodigy who committed suicide at age 26 after facing 13 federal charges -- and a potentially lengthy prison sentence -- from federal prosecutors.  
In the fall of 2010, Swartz downloaded millions of academic journal articles from the online database JSTOR. Although Swartz had legal access to the documents through a JSTOR account, his decision to download them en masse, rather than one at a time, violated JSTOR's terms of service agreement. JSTOR, however, did not press any charges against Swartz and urged the prosecution not to seek a criminal case. After Swartz's death, the nonprofit group issued a statement criticizing the prosecution, saying that it shared many of Swartz's open-access ideals. In early January, the organization made 4.5 million journal articles available for free online. ...
Swartz's lawyers have said [U.S. Attorney Carmen] Ortiz and Assistant U.S. Attorneys Scott Garland and Stephen Heymann used the prospect of severe penalties to intimidate Swartz into pleading guilty to a lesser charge, insisting on both jail time and a felony conviction as minimum terms. When Swartz refused to accept those terms, Ortiz's office added additional felony charges in an effort to increase pressure on him to accept the prosecution's terms. ...
[California Representative Darrell] Issa questioned such tactics and the Department of Justice's strategy in the Swartz case in an interview with HuffPost on Tuesday.

"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."
Representative Zoe Lofgren (D-CA) plans to introduce legislation to clarify the statutes that Swartz violated, and Rep. Issa (R-CA) has an investigator looking into whether prosecutors abused their power in charging Swartz. Prosecutors on the case have maintained that their conduct and charging decisions were appropriate.
Issa said he didn't have enough information to say whether the U.S. Attorney’s Office in Massachusetts overprosecuted Swartz. He said he had dispatched an investigator to gather more facts. ...
Issa said that at first blush, the decades-long threat of a prison sentence for Swartz seemed extreme. “It does seem like it was an awful lot -- you know, 26 years potential sentence, no chance for a plea bargain -- so it did seem like it might be" an overly aggressive prosecution, Issa said. "But again, we’re in the business of finding for sure."

Swartz in fact faced up to 35 years in prison on 13 felony charges for downloading millions of academic journal articles from the online database JSTOR.
Of course, many FAMM supporters are personally familiar with the unlimited and unreviewable charging power of prosecutors. Prosecutors have complete and unreviewable power to add, change, or drop charges, offer plea bargains, or offer (or not) shorter sentences in a plea deal. When a charge carries a mandatory minimum, the prosecutor also decides the sentence, not the judge. And with only two ways out of a mandatory minimum -- the safety valve (for drug offenders) or pleading guilty and snitching -- defendants can feel desperate and hopeless, indeed.

Swartz's case is a sad example of how prosecutors don't even need mandatory minimums to put enormous pressure on defendants.

Prosecutors serve an important role in our criminal justice system -- we need them to do their jobs and do them well. We also need to question their tactics and the use of their power, though, and find reasonable limits and checks on that power.