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

Swartz's case far from an anomaly


Neither the first nor the last

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.