Photo: Flickr/Creative Commoners
I didn’t know anything about Aaron Swartz until he killed himself two days ago.Since then, thanks to the outpouring of emotion over his death, I’ve learned a lot.
I’ve learned enough to know that Swartz’s death is a big loss not just to those who knew him and loved him but to the community at large. The number of amazing things that Swartz was involved in during his short life—RSS, Reddit, campaigns against the Internet censorship bills SOPA and PIPA, et al—suggests that he might have gone on to do much, much more.
I’ve also learned enough to know that some serious questions need to be answered about the legal situation that Swartz was involved in.
After his death, Swartz’s family and friends said the behaviour of the U.S. Attorney, who was prosecuting Swartz for an alleged criminal hacking incident, contributed to his suicide.
That’s a serious charge, one that would weigh heavily on the conscience of any fair person involved in the prosecution. So for the sake of both sides, it needs to be investigated.
(To be fair, there’s no way that the prosecutors bear the full responsibility here, no matter how they behaved. Life isn’t fair, and Swartz was quite open about his struggles with depression.)
Lawrence Lessig, the noted Harvard professor and legal scholar, concurs with Swartz’s family, saying that Swartz was a victim of prosecutorial “bullying,” in which a prosecutor was taking what appears to have been a relatively minor transgression and using it to brand Swartz as a “criminal felon” and force him to plead guilty to multiple felonies.
Other writers, such as Jonathan Blanks, have already cited the case as another instance of prosecutorial overreach and described the reality that prosecutors are endowed with an extraordinary amount of power but are not incented to use that power to be fair and reasonable. Rather, they are incented to prosecute those whom they, in their sole discretion, regard as criminals—and get convictions. And this incentive system leads some prosecutors to overreach—bring cases they shouldn’t, or use their power too harshly—without having enough respect for the lives of those they prosecute.
After reading these essays, I read the prosecutor’s indictment of Swartz.
In 2011, Swartz was charged with multiple felonies after downloading millions of academic papers from the online repository JSTOR—a service that aggregates these papers and makes them available for a modest fee to institutions and individuals. Based on the prosecutors’ description of this incident—a description that has not yet been established as fact—there’s no question that Swartz did something unethical and, probably, illegal. He accessed a network he was not entitled to access, hid his real identity, changed his digital identity multiple times once his actions were discovered and blocked, and knew he was doing something wrong. But there’s a far cry between “unethical” and “13 felonies” punishable by a long prison sentence, especially when the items that Swartz downloaded were mostly freely available academic papers.
This is where prosecutorial discretion comes in.
And that’s where we enter a part of our legal process that is often unfamiliar to those who haven’t had firsthand experience with it.
Our legal system is a so-called “adversarial system.” It pits one side, prosecutors, against the other side, defendants. If a case goes to trial, each side has an opportunity to make its case. And then a neutral party, a judge or jury, decides who is right.
Our legal system is a good system. If you haven’t taken a moment to appreciate the fact that, in America, you 1) have the right to “have your day in court” and 2) your day in court has a reasonable chance of being a relatively fair hearing, you should do so now. People in many countries do not have these things. And the amount of injustice that is dispensed in these countries would make any fair person cringe.
But just because our system is good doesn’t mean it is perfect.
Our system does not always “get it right.” (No system does.) And our system can be unfair in ways that are not always obvious to those who haven’t been through the process.
When a prosecutor decides to charge someone with a crime, the prosecutor immediately puts that person’s normal life on hold. The prosecutor also forces the person to either 1) cut a deal, or 2) defend him or herself in court.
If you are guilty of the prosecutors’ charges, this decision is easy: You plead guilty and cut a deal.
If you are not guilty, however, or guilty of much less serious infractions, you find yourself in an extraordinarily stressful and, to some extent, no-win situation.
Defending yourself in court is an extremely stressful, expensive, time-consuming, and risky proposition. Unless you choose to use a public defender, even small trials can cost astronomical amounts of money and take years to prepare for. (Lawrence Lessig tossed off the remark that Swartz’s trial would be a “million-dollar” trial that had already depleted Swartz’s modest wealth.) Even if you win, you don’t get your money, time, or reputation back. So it will be a Pyrrhic victory, regardless.
If you defend yourself and lose, meanwhile, your sentence is likely to be far more punitive than it would have been if you had just “taken responsibility for your actions” and cut a deal. For obvious reasons, judges and prosecutors look favourably on defendants who save the government money and time by not defending themselves. And these folks usually get a better deal.
All of this is logical.
And if a fair-minded prosecutor who is completely convinced of a defendant’s guilt brings fair charges and offers a reasonable deal prior to trial, then the system is working as it should.
The trouble comes when the prosecutor is not fair-minded. Or not certain of a defendant’s guilt. Or does not bring fair charges. Or does not offer a reasonable deal.
In these cases, a defendant faces an even tougher choice:
- Either plead guilty to a crime(s) you didn’t commit and/or accept a punishment that you know you don’t deserve,
- Defend yourself at the cost of immense stress, money, and time and risk losing and getting an even harsher punishment
The reality of our justice system, in other words, is that prosecutors don’t just have the power to act as “adversaries.” To a certain extent, by being able to bring major pressure to try to force a plea deal, they also have the power to act as judge and jury.
In Aaron Swartz’s case, the U.S. Attorney had charged Swartz with 13 criminal felonies, including wire fraud,and the usual kitchen-sink crimes that seem to get tossed into any computer-related case.
If Swartz were to have been convicted of even some of these felonies, he would likely have faced many years in prison.
So his downside risk was huge.
If Swartz had considered himself to have committed these 13 felonies, he would likely have pleaded guilty and cut a deal.
So it seems safe to assume that Swartz did not believe he was guilty of 13 felonies. And it also seems safe to assume that he was not offered a plea deal that he could live with—either because the prosecutor was demanding that he plead guilty to crimes he didn’t think he had committed and/or because the prosecutor was offering a sentence that Swartz thought was too harsh.
So the key questions that need to be answered are these:
- Were the allegations and charges brought against Swartz reasonable in light of what he actually did?
- Did the prosecutor offer a reasonable plea deal to Swartz?
Or, as Lessig and others suggest, was this a case in which a prosecutor decided to make an example of Swartz in hopes of claiming a high-profile scalp and furthering his own career?
(It would also be helpful to know what Swartz’s motivations were in downloading the academic papers. He wasn’t going to make a personal financial gain, clearly, so the action appears to have been motivated by an idealistic view that “information should be free and freely available” or some other philosophy that is common in some parts of the tech community, especially among younger people.)
Regardless of the answers to these questions, Aaron Swartz’s death is a tragedy, and nothing that happens in the future will change that. And no matter how he was treated by prosecutors, there is no way that they deserve all of the blame for what happened. (Life isn’t fair, and many people have survived far greater unfairness and injustice than this—if that’s indeed what happened here.)
But especially because Swartz is no longer here to defend himself, and because the U.S. Attorney is being partially blamed for his death, we need to get the answers to these questions.
We owe both sides that.