Can Outrage over the Zealotry of Federal Prosecutors Outlast Swartz Case?

So, federal prosecutors may have gone overboard throwing the book at Aaron Swartz in order to browbeat him into submission for the crime of downloading tons of academic journal studies at MIT without permission. As Reason readers know, overzealous behavior by federal prosecutors is hardly a new phenomenon.

Former Reason Editor Radley Balko, famous (but not nearly famous enough) for exploring misuse of authority by prosecutors in order to convict whoever is in front of their crosshairs, took a lengthy look at the many ways federal power is abused. He hopes the activism in response to Swartz’s suicide doesn’t end just with proposed changes to the Computer Fraud and Abuse Act:

The federal government in particular seems to be getting less tolerant of challenges to its authority, and more willing to use more force and more serious charges to make an example of people who defy the law. You see this with the ridiculously disproportionate SWAT raids on medical marijuana dispensaries. No one seriously believes the people running these businesses are a threat to federal law enforcement officers. Sending the SWAT team is about sending a message. The government is sending a similar message when it conducts heavy handed raids on farmers and co-ops that sell raw dairy products, or when it sends paramilitary teams to raid the offices of doctors suspected of over-prescribing prescription painkillers. You see it when the feds throw the book at suspected copyright violators, or at the executives of online poker sites, threatening decades in prison. The goal in these cases isn't to stop and punish someone who is a serious threat to other people. It's to send a message to the rest of us: Defy the government as this person did, and here is what will happen to you.

George Washington University Law School Professor Orin Kerr followed up on his previous analysis of the case at The Volokh Conspiracy to evaluate the federal response. He concludes that it is certainly appropriate to try to punish Swartz’s illegal behavior in some fashion: He was engaging in an act of civil disobedience and knew it. He wrote his post before U.S. Attorney Carmen Ortiz publicly announced that the plea bargain offered to Swartz would have put him in a minimum security prison for six months, so Kerr was unable to evaluate the proportionality of what Swartz truly faced versus what was potentially possible. Observers have noted the Department of Justice’s own press release declared he faced up to 35 years. That was the possible penalty for having the audacity to defend himself by not taking the plea bargain and what makes Ortiz's response so insidious. Mercy was a reward for subservience to the state, not a response rationally applied due to circumstance.

Kerr goes on to make a similar argument as Balko. If people don’t like what the federal government was doing to Swartz, they need to be aware that this is actually very common behavior:

[T]he broader point is that if we think aggressive prosecution tactics such as this are improper, we shouldn’t be focused just on the Aaron Swartz case. Rather, we should be shining a light on the federal criminal system in its entirety. These sorts of tactics have been going on for years, without many people paying attention. If we don’t want a world in which prosecutors have these powers, we shouldn’t just object when the defendant in the crosshairs is a genius who went to Stanford, hangs out with Larry Lessig, and is represented by the extremely expensive lawyers at Keker & Van Nest. We should object just as much — or even more — when the defendant is poor, unknown, and unconnected to the powerful. To do otherwise sends an extremely troubling message to prosecutors that they need to be extra sensitive when considering charges against defendants with connections. We have too much of a two-tiered justice system already, I think. So blame the system and aim to reform the system; don’t think that this was just two or three prosecutors that were doing something unusual. It wasn’t.

Balko today has published over at the Huffington Post yet another amazing, heartbreaking story about Mississippi’s misbegotten forensics system and the parade of victims it has created in the state’s zeal to convict and close cases. Though this is a case of terrible mismanagement of justice on the state level, it is still deserving of the same level of outrage and national attention Swartz’s case has received.

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  • Mike M.||

    Maybe the feds just didn't care for his backpfeifengesicht.

  • Almanian.||

    No.

  • buybuydandavis||

    "Sending the SWAT team is about sending a message."

    I don't know about that. Could just be about getting hazard pay or over time, logging hours to justify head count, or tapping into special funds set aside for SWAT raids.

    In short, bureaucracies are largely machines based on funding, fiefdoms, and red tape, not ideology.

  • Fist of Etiquette||

    Observers have noted the Department of Justice’s own press release declared he faced up to 35 years. That was the possible penalty for having the audacity to defend himself by not taking the plea bargain and what makes Ortiz's response so insidious.

    That's exactly right. And the prosecutor who was in charge of the case supposedly had a history of rescinding plea offers that weren't immediately accepted. I don't know if that's true here.

    Prosecutors threaten with outrageous prison terms so they can avoid having to go through the trouble and uncertainty of court by forcing defendants to go for the plea. They just want the easiest win. Justice? Not so much a concern. The fact that Ortiz made her claim of six months suggests they're actually feeling some heat, and maybe see the possibility of legislative limits put on their game.

  • sarcasmic||

    Convictions are more important than justice.

  • John C. Randolph||

    ...and punishing disobedience is even more important than getting convictions.

    -jcr

  • DEATFBIRSECIA||

    In other news, Ortiz says she is "terribly upset" over Aaron's death:

    http://news.yahoo.com/prosecut.....oAQNPQtDMD

    She's upset that she's now the "target" of an investigation, and not the instigator.

  • Fist of Etiquette||

    Swartz's former lawyer, Andrew Good, said earlier this week that when he told prosecutors Swartz was suicidal, they offered to keep him in jail.

    They generally don't care if the resume-padding they have in their sights is suicidal until something like this bad PR happens.

  • John||

    Responding to a reporter's question, Ortiz said her prosecutors did not demand that Swartz plead guilty. She said they but had discussions with his lawyers about a deal in which prosecutors would have recommended a sentence of about six months. She said Swartz's lawyer would have been able to argue for a lesser sentence.

    We just threatened him with 35 years in prison if he didn't.

    I hope that fucking bitch dies a painful death.

  • John C. Randolph||

    Ortiz says she is "terribly upset" over Aaron's death:

    If she really wants to show the world that she feels remorse for persecuting this harmless man, she could resign, give up her law license, and devote the rest of her life to lecturing law students on the horrible costs that the lust for power can inflict on other people.

    Until and unless she does this, we'll know she's just another goddamned Nifong who doesn't give a shit who she hurts to further her career.

    -jcr

  • Randian||

    I don't give a shit about Aaron Swartz. He wanted to play civil disobedience without actually taking the sentence. Prosecutors do this every day, but now that some white techie liberal is on the receiving end, suddenly everybody gives a damn.

    The prosecutor's actions were within the law. Aaron Swartz could have walked away with a four-month sentence. He didn't and apparently didn't understand the phrase "leverage". Too bad for him.

  • DEATFBIRSECIA||

    Prosecutors should never have that type of "leverage" in the first place. This is the purview of mafia thugs and corrupt potentates, not of a just government, and represents a sentencing regime out of control.

  • Randian||

    Fine, then take it up with Congress. The prosecutors are a symptom, not the disease.

  • sarcasmic||

    Fine, then take it up with Congress.

    Ask a bunch of lawyers to take power away from lawyers. Good luck with that.

  • DEATFBIRSECIA||

    ^^^This.

  • Grandpa Whithers||

    Ask a bunch of lawyers to take power away from lawyers. The People. Good luck with that.

  • wareagle||

    the prosecutors are part of the disease cell structure. How many politicians used to be prosecutors. Rudi and Spitzer, to be bipartisan, come to mind. They're not all defense attorneys.

  • RyanXXX||

    "Then take it up with Congress"

    Oh, since those noble Prosecutors aren't at all responsible for their slimy behavior? Just be honest and admit that you enjoy seeing a "white techie liberal" get railroaded

  • John||

    Funny how I am always the one that Randian accuses of being a right wing culture warrior. Yet, I am the one sticking up for the left wing techie here.

  • RyanXXX||

    Indeed. Among some of the more "pro-business" libertarians there is a tendency to automatically spit venom at anyone who's at all anti-corporate

  • John||

    I see your point. But prosecutors choose not to bring charges all of the time. See for example Gregory, David. There was no reason this was ever a federal case. The victim didn't want it to be. It was only a federal case because Ortiz is a horrible creature who would throw anyone in jail to advance her career and saw it as a way to advance her career.

    While. Swartz is hardly perfect, Ortiz is a disgrace to the justice system. Swartz is dead and Ortiz is alive and worse still, still prosecuting cases. Just once I would like to see an abusive careerist prosecutor actually pay for being so.

  • sarcasmic||

    The prosecutor's actions were within the law.

    Many things that are within the law are wrong. Not saying that what the prosecutor did was wrong, but just because something is lawful doesn't make it right.

    As far as Swartz goes, no one forced him to take his own life.

    *shrug*

  • RyanXXX||

    What they did WAS wrong. Randian's comment was just stupid - he sounds like the bootlicker trolls who show up here all the time.

  • Stormy Dragon||

    Just remember, a complete lack of empathy cuts both ways. Most people don't give a shit about Randian either. So if Obama raises your taxes to 75% should they just shrug it off as being with in the law and too bad for you?

  • John||

    Randian, even Esquire understands this better than you do

    This is, of course, defending yourself with armed banality. Very few people are saying the prosecution itself was "unwarranted." Even Swartz's own lawyers say he was willing to accept probation and a fine. Nobody's accusing the prosecutors of violating their oaths. The problem is that, by the modern standards of how federal prosecutors behave generally, and how Ortiz's office has behaved in particular, she would see their actions as both appropriate and "reasonable." And the glibness with which her husband and her defenders toss off a "mere" six months in federal prison, low-security or not, is a further indication that something is seriously out of whack with the way our prosecutors think these days.

    Read more: Still More About The Death Of Aaron Swartz - Esquire http://www.esquire.com/blogs/p.....z2IHJdHOZO

  • John||

    That Charles, I am THE American Idiot Pierce. And even he gets it. Fuck you Oritz for making me agree with Charles Pierce.

  • John||

    And fuck you Randian for making me agree with Stormy Dragon.

  • wareagle||

    I get being pissed off about an overzealous prosecutor. I don't get playing chicken with the legal system when you know, as Swartz did, that you are doing something wrong.

  • John||

    Wareagele

    That is the same logic Dunphy uses defending cops. The perp knew the cops were animals, what did they expect?

    We hire prosecutors to do justice and to use discretion. Just because Swartz was guilty of something in no way excuses her behavior.

  • wareagle||

    that is totally NOT like what Dunphy says. Swartz knew what he was doing was wrong and he chose to poke the bear.

    It's fair to say the bear acted in a wholly disproportionate manner, but I don't see lionizing him. The bigger consequence is that this becomes a nothing-to-see-hear-move-along thing, unless we should expect govt to crack down on one of its own.

  • John||

    No one is lionizing him. He is not the point. The point is to rightfully demonize Ortiz. This story is about how the actions of a nasty, immoral careerist prosecutor drove someone to suicide. The fact that that person may not have been perfect is irrelevant.

    I don't care if Swartz is the dumbest most egotistical person on earth, that doesn't justify what Ortiz did. And that is what needs to be stressed. And yes, that is exactly the logic Dunphy uses. Because the guy was guilty or ran from the cops or did something else stupid, Dunphy thinks the cops shooting him or beating the shit of him was just fine. Same principle here and it is wrong in both instances.

  • wareagle||

    I have no issue with going after Ortiz, though she may closer to the prosecutorial rule than the exception. That profession is not known for being warm and fuzzy.

    "Drove him to suicide" may be a reach; as I understand it, there was a plea deal on the table of some months and, again, Swartz was claiming innocence.

    Maybe this should have gone to court; let's see behind the JSTOR curtain at the database of research materials that are far more often published for the sake of career reputation and prestige than for profit. I would be curious to see if a jury would believe things that often come through public universities should, by extension, be in the public domain rather than hidden in password protected higher ed libraries where access requires either employment or tuition payments.

  • wareagle||

    and you are changing your Dunphy story - first it was perps knowing cops are animals, then it became criminals had it coming to them. Come on, man.

  • John||

    And Ortiz is also the bitch whose office filed forfeiture action against the guy who had the shabby motel because (gasp) hookers sometimes rented rooms there.

    http://whowhatwhy.com/2013/01/.....rap-sheet/

  • John||

    It is the same principle wareagle. The guy had it coming is no different than "he should have known you can't run from the cops".

  • John||

    "Drove him to suicide" may be a reach; as I understand it, there was a plea deal on the table of some months and, again, Swartz was claiming innocence.

    that is the most appalling part. She expected him to plead guilty and endure six months in the living hell known as federal prison or risk 36 years defending himself. All so that bitch could advance her career. I hope she fucking dies.

  • wareagle||

    She expected him to plead guilty and endure six months

    stop me if I am wrong, but is this not what prosecutors typically expect of folks who have done something they knew to be wrong? I get your being pissed off at her treating this like way more than it was. But if this guy was standing on principle, he had to know a cost was possible.

    No one knows how a trial would have swung. I would be curious to have seen the layers of the licensing onion peeled back a bit.

  • Dan Bongard||

    Maybe the little pussy should have held off on breaking into other peoples' property if prison scared him so much.

    Just a thought.

  • John||

    And yes I am sure her behavior as appalling as it is, is typical for US attorneys. All the more reason to make an example of her.

  • wareagle||

    hard to imagine the system making an example of one of its own. On that score, it totally parallels police misconduct.

  • Dan Bongard||

    Which of the crimes Swartz was charged with are you claiming he wasn't guilty of?

    So far the only thing Ortiz seems to have done that was even slightly wrong is go after a guy with connections. Swartz appeals to all the people who fancy themselves internet rebels but don't have the balls to actually BE internet rebels.

    Of course, it turned out that Swartz didn't either. Oops.

  • Hawk Spitui||

    Oh, my! Ok, folks, the line for pitchforks is on the left, burning torches on the right. No shoving, there's plenty for everyone!

  • Deep Lurker||

    The prosecutor's actions were within the law.

    "I was just following orders."

  • Dan Bongard||

    You just don't understand, Randian.

    You see, it totally sucks when an upper-class white kid with rich and powerful friends faces actual prison time for using fraud to steal from people.

    Everyone knows that only poorer or perhaps darker people, with no rich and famous friends, should be jailed for their crimes.

  • DEATFBIRSECIA||

    "Everyone knows that only poorer or perhaps darker people, with no rich and famous friends, should be jailed for their crimes."

    Blatant strawman. Many of those outraged by the treatment of Swartz have been and are involved in the struggle to make sure that the type of "leverage" that Randian praised is no longer at the disposal of these self-important, over-powered prosecutors, regardless of the color, wealth, or connection of those they pursue.

  • KPres||

    I don't give a shit about him, either, but not because the state had the "right" to bully him in this way. I don't give a shit about him because he was a progressive and I only care about other libertarians. This is a democracy, people like him created this government, and in fact, ARE this government. And I don't give a shit when bad things happen to the government.

  • Juice||

    Did HSBC get a SWAT raid?

  • John||

    Did anyone from HSBC ever get prosecuted for anything. But DOJ had plenty of time to go after Swartz.

  • Grandpa Whithers||

    What a punchable face.

  • waaminn||

    Sounds like a solid plan to me dude.
    www.Anon-vc.tk

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