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“DOJ Admits Aaron [Swartz] Prosecution Was Political”
March 6, 2013 8:09 AM   Subscribe

Steven Reich told the House that Aaron Swartz’s Guerilla Open Access Manifesto played an important role in the DOJ's decision to prosecute him. (previously)

“Many people speculated throughout the whole ordeal that this was a political prosecution, motivated by anything/everything from Aaron’s effective campaigning against SOPA to his run-ins with the FBI over the PACER database.” - Taren Stinebrickner-Kauffman

In Life Inside the Aaron Swartz Investigation, Quinn Norton explains that she initially told Steve Heymann about the 2008 manifesto. Norton writes, “It is important the people know that the prosecutors manipulated me and used my love against Aaron without me understanding what they were doing. This is their normal. They would do this to anyone. We should understand that any alleged crime can become life-ruining if it catches their eyes.”

“The anarchist dictum when it comes to grand juries is a simple one: 'No one talks, everyone walks.'” - Natasha Lennard

As yet, there has been no response from the White House on the petitions to remove Aaron Swartz's prosecutors Carmen Ortiz and Stephen Heymann for overreach. Ortiz petition passed the 25k signatures required for a response quickly, ultimately reaching 53k signatures. Heymann petition languished for weeks appeal from Taren Stinebrickner-Kauffman brought in the required 25k signatures.

Another memorial services for Aaron Swartz will take place in Boston at the MIT media lab next Tuesday 12 March 12, after which the talks will be available on youtube along with videos from past memorials at the Internet Archive, San Francisco (Part 1, Part 2) and Cooper Union, New York (full).
posted by jeffburdges (97 comments total) 34 users marked this as a favorite

 
Quelle Surprise...
posted by Pendragon at 8:15 AM on March 6, 2013 [2 favorites]


The "Manifesto," Justice Department representatives told congressional staffers, demonstrated Swartz's malicious intent in downloading documents on a massive scale.

I see a wide gulf between "political persecution because of this document" and "this manifesto said he wanted to do what we're accusing him of doing, which is a crime." This is in no way an admission that his anti-SOPA (i.e., political) work had anything to do with his prosecution. He laid out a crime, and he took steps to commit that crime, and the DOJ prosecuted him for it. Did they go too far? Hells yeah they went too far. Should his actions have constituted a crime? No, or at least, not as severe as the ones he was charged with. Prosecution is not always persecution.
posted by Etrigan at 8:20 AM on March 6, 2013 [6 favorites]


He laid out a crime

Please quote the section of the Guerrilla Open Access Manifesto where "he" did this (or even where the authors did this, since the document was written by a group of people of whom he was only one member).
posted by enn at 8:29 AM on March 6, 2013


rich young white people discover the US justice system... hilarity ensues.

if you write a "poltical" manifesto expressing your intention to do something which might be a crime, don't be surprised if the prosecutors use that as evidence that you were in fact intending to do that thing.
There is no justice in following unjust laws. It's time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture.

We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that's out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.
Swartz was, for all his talk about "guerillas", naive about the bear he was baiting.
posted by ennui.bz at 8:30 AM on March 6, 2013 [3 favorites]


rich young white people discover the US justice system... hilarity ensues.

Someone died.
posted by Drinky Die at 8:32 AM on March 6, 2013 [61 favorites]


Should his actions have constituted a crime? No, or at least, not as severe as the ones he was charged with. Prosecution is not always persecution.

Seeking a multi-decade jail sentence for his actions (which are borderline criminal at best), is persecution in my book. It was an attempt to punish him for more than just the crimes he was accused of, it was intended to injure him. Implying that this prosecutor was "just doing their job" is giving that person (and, more importantly, the system that they work within) a free pass, and that attitude won't stop this from happening again.
posted by antonymous at 8:44 AM on March 6, 2013 [8 favorites]


Isn't this FPP rather heavily editorializing per Metafilter's norms?
posted by yoink at 8:49 AM on March 6, 2013 [5 favorites]


hilarity ensues

Read the Norton piece? Does she sound like someone unfamiliar with the destructiveness of the justice system, or with poverty?

Yeah, Aaron Swartz was young, rich, white, and well-connected compared to the average human being. Lots of people who aren't any (or enough) of those things are being eaten alive by the machinery of the justice system every day without notice.

I think these are not good reasons to sneer when people who were involved in this particular case and have a public voice try to shine some light on the machinery.
posted by brennen at 8:50 AM on March 6, 2013 [16 favorites]


Seeking a multi-decade jail sentence for his actions (which are borderline criminal at best), is persecution in my book. It was an attempt to punish him for more than just the crimes he was accused of, it was intended to injure him.

It was an attempt to deter others from doing the same, as also noted in the article that the linked article referred to:
Reich told congressional staffers that the Justice Department believed federal prosecutors acted in a reasonable manner, according to the sources. He also made clear that prosecutors were in part influenced by wanting to deter others from committing similar offenses.

When considering punishment, courts are supposed to impose an “adequate deterrence to criminal conduct" under federal statute.
Implying that this prosecutor was "just doing their job" is giving that person (and, more importantly, the system that they work within) a free pass, and that attitude won't stop this from happening again.

You actually quoted the part where I said, "Should his actions have constituted a crime? No, or at least, not as severe as the ones he was charged with." and managed to ignore the part right before it, where I said, "Did they go too far? Hells yeah they went too far." They weren't "just doing their job," and any accusation that I was "Implying" it is an outright lie. But no one has admitted to any sort of political persecution, as this FPP baldly states.
posted by Etrigan at 8:53 AM on March 6, 2013 [3 favorites]


One of the corollaries of this message is that Swartz did not kill himself; he was murdered by the government. But this claim is for public consumption, and the people closest to him do not really believe it. They believe that he would not have killed himself without the prosecutors, but they feel that there is something missing from this account—some further fact, a key, that will make sense of what he did.
posted by KokuRyu at 8:55 AM on March 6, 2013 [2 favorites]


Most federal prosecutions are political. While prosecution is a default for national security offenses, crimes on federal government property or ports and airports, etc., the US Department of Justice doesn't have the resources to prosecute, to say the least of imprison, more than a small fraction of people for whom evidence exists or could be found that they violated other elements of the federal criminal law. By long-standing procedure and guideline, the DOJ chooses people to prosecute out of an explicit desire to send a message about federal policies and deter other potential offenders. For the (vast) remainder, the feds leave it to the states to prosecute, or (in the case of offenses with no state criminal violation) content themselves with civil remedies, or no remedy at all. Be grateful for this the next time the IRS sends you a polite note saying they recalculated your liability and would like a check for $1,800, rather than the FBI showing up at your house with handcuffs.
posted by MattD at 8:55 AM on March 6, 2013 [6 favorites]


Isn't this FPP rather heavily editorializing per Metafilter's norms?

Not really. Just in a slightly different direction than is perhaps usual.
posted by umberto at 8:55 AM on March 6, 2013 [1 favorite]


Read the Norton piece? Does she sound like someone unfamiliar with the destructiveness of the justice system, or with poverty?
I had to Google grand jury to find out what it was.
Norton comes off as living in a huge bubble, regardless of her upbringing. Also, that article by should be painfully embarrassing to everyone involved. she is trying to blame herself for Swartz's indictment, in part because Saint Aaron blamed her:
"I just went in there to tell them you were a good person, and to not do this," I told him.

"Why didn't you?" he asked me, still angry.

"I did." He looked away.

I told him I couldn't live with the thought I'd hurt him. And once again I pleaded with him. Why didn't you talk to me, let me help? I could have kept him safe. I could have at least tried. He got up and walked out, angry.
Swartz seems vain, petulant, and most importantly, not willing to suffer the consequences of his actions. He wants to live this fantasy life of an poltical activist but just had no way of dealing with shit getting real... not the best candidate for radical politics.
posted by ennui.bz at 8:56 AM on March 6, 2013 [3 favorites]


I wish someone would collect all the talks from the various memorials. So many are quite good, like Carl Malamud's Aaron's Army and Edward Tufte’s Defense of Aaron Swartz and the “marvelously different”.
posted by jeffburdges at 8:58 AM on March 6, 2013 [2 favorites]


I don't know if I have anything special to add to this thread right now ... but I just want to say that I hope this story isn't forgotten, and it's good that people are continuing to talk about it.
posted by compartment at 9:07 AM on March 6, 2013 [4 favorites]


To me this seems like the DOJ was just thinking "we got a Wikileaks guy" due to his open-access manifesto. The break-in and prosecution took place immediately after Wikileaks' diplomatic cable release -- not a stretch to imagine prosecutors tripping over each other trying to round up people that might have been involved.
posted by RobotVoodooPower at 9:17 AM on March 6, 2013


He wants to live this fantasy life

He wants no longer.
posted by hat_eater at 9:19 AM on March 6, 2013 [1 favorite]


Seeking a multi-decade jail sentence for his actions (which are borderline criminal at best), is persecution in my book.

Outside of the quote of "he could get 35 years" tossed around by the media, according to Aaron's attorney the offer on the table from the DOJ was 6 months a plea they rejected.
posted by bitdamaged at 9:25 AM on March 6, 2013 [1 favorite]


Etrigan, I apologize if I took your quote out of context (it was the second comment and I viewed it as defending his prosecution, which, upon re-reading, is a stretch).

I think that attempting to prosecute anyone for multiple felonies for this "crime" is deterrent enough, and a 30-50 year jail sentence is absolutely ridiculous. But I also don't think it's possible to be a prosecutor and not throw around political weight - whether it constitutes "political persecution" is a difficult argument to make one way or another. Any kind of 10+ year sentence for a non-violent crime should be reviewed by someone other than a prosecutor and judge, who both have interests in being heavy-handed and who both have a job-related interest in politics.
posted by antonymous at 9:27 AM on March 6, 2013


... the offer on the table from the DOJ was 6 months a plea they rejected.

6 months plus a felony conviction. Don't leave the felony part out.

A felony conviction is essentially an excommunication from most avenues of professional employment.
posted by de void at 9:32 AM on March 6, 2013 [13 favorites]


Outside of the quote of "he could get 35 years" tossed around by the media, according to Aaron's attorney the offer on the table from the DOJ was 6 months a plea they rejected.

Any time spent in a prison (as opposed to a jail) for sharing data is a terrible indicator for how our political and economic leaders view even the smallest forms of active, non-vocal dissent.
posted by Slackermagee at 9:33 AM on March 6, 2013 [8 favorites]


6 months and a felony conviction for what exactly? Downloading stuff from JSTOR on the MIT open network which wasn't illegal? JSTOR, the alleged victim had decided it wasn't going to pursue him. The artivles he was downloading were out of copyright. We are left with stashing a computer in a closet on campus? Unauthorized access to a famously "open" computer network? Trespassing on MIT's campus isn't a federal crime. There was no crime here.
posted by humanfont at 9:36 AM on March 6, 2013 [10 favorites]


6 months plus a felony conviction. Don't leave the felony part out.

Yes he was being prosecuted, but it seems the question of the thread is whether he was being persecuted.
posted by bitdamaged at 9:41 AM on March 6, 2013


Metafilter: rather heavily editorializing per Metafilter's norms.

Prosecution is not always persecution.
Investigation is not always persecution. Prosecution is not persecution when it's just or fair on not predicated on their religious values or ethnicity or political beliefs.

Political prosecution is pretty much by definition persecution.
The question is what role did the manifesto play in the prosecution.
If it got their attention like "Say, this guy is saying he's going to do some criminal acts, we should check out if he did ... " it's different than "Say, this guy is saying things that pisses off powerful interests, we'd better screw him over."

"Appropriate" is debatable. But why waste the time going that hard over a case that's not being driven by anyone but the prosecutor?
So politically motivated, yeah big problem. His suicide aside, we can't tolerate our system operating that way.
posted by Smedleyman at 9:41 AM on March 6, 2013 [1 favorite]


I donno if "most federal prosecutions are political" simply because prosecutors seek to "send a message", MattD, but frequently prosecuting activists for civil disobedience becomes political when the prosecutors have obviously selected to prosecute those specific crimes to silence them. Aaron's case is particularly political in how they pulled out all the stops to make him cave. It's that "admit you were wrong" bit that really nails his prosecution as political. It'd also be political if they were simply seeking revenge for his PACER stunt but slightly differently so.
posted by jeffburdges at 9:43 AM on March 6, 2013


Someone died.

Exactly.

.
posted by ericb at 9:50 AM on March 6, 2013 [1 favorite]


Someone died.

Someone killed himself. There's a difference. Otherwise, line up with the guys that think the Clintons were responsible for the death of Vince Foster.
posted by Cool Papa Bell at 9:52 AM on March 6, 2013 [3 favorites]


It's that "admit you were wrong" bit that really nails his prosecution as political.

Admission of wrongdoing, in some form or another, is a pretty standard part of plea bargains, even for utterly apolitical crimes. Alford pleas aren't that common, especially in federal courts.
posted by Etrigan at 9:57 AM on March 6, 2013 [2 favorites]


Alford pleas aren't that common, especially in federal courts.

Prosecuting people when the alleged "victim" isn't interested in it, when only a new and highly debatable reading of the law allows prosecution at all, when the defendant is a political enemy of the government, and when the government's plea offer is 1/70th of the sentence it can seek otherwise, is likewise not all that common.

One hopes.
posted by tyllwin at 10:04 AM on March 6, 2013 [3 favorites]


>I donno if "most federal prosecutions are political" simply because prosecutors seek to "send a message"

It's my nature. The frog and the scorpion, you know? ...Besides, if you would've won I'd be the one crying the blues, right?Hey, you're not the first guy to get busted out. This is how a guy like me makes his living. This is my bread and butter. When this is over you're free to go. You can go anywhere you want.
posted by KokuRyu at 10:06 AM on March 6, 2013


Prosecuting people [is likewise not all that common] ... when the defendant is a political enemy of the government

A lot of people claim they're being prosecuted for political reasons. Mumia, Kaczynski, McVeigh... Asserting it doesn't make it true, nor should disagreement with the government render one automatically free from prosecution.

and when the government's plea offer is 1/70th of the sentence it can seek otherwise

That happens all the time. Piling up every possible crime the defendant may have committed (trespassing, theft, burglary, use of a weapon while trespassing, use of a weapon while committing theft, use of a weapon while burgling...) and saying "You're going to spend the rest of your life and your kids' lives and their kids' lives in prison, or we can give you 1/70th of that" is the entire point of plea bargains.
posted by Etrigan at 10:17 AM on March 6, 2013 [3 favorites]


(And again, I'm not saying that the prosecutors weren't absolute dicks in this whole thing. I just don't think they were dicks because they wanted to crush the idea of open access to knowledge at the behest of their corporate masters.)
posted by Etrigan at 10:29 AM on March 6, 2013


That happens all the time. Piling up every possible crime the defendant may have committed (trespassing, theft, burglary, use of a weapon while trespassing, use of a weapon while committing theft, use of a weapon while burgling...) and saying "You're going to spend the rest of your life and your kids' lives and their kids' lives in prison, or we can give you 1/70th of that" is the entire point of plea bargains.

Exactly. You can see the behaviour of the prosecutors in Swartz's case in every courtroom at every level across the US... every day.

I'm all for flinging shit and seeing what sticks but you should realize that what you are flinging is bullshit: there's no evidence of anything other than standard behaviour in the prosecution of this case.

Swartz should have hoped for and welcomed the sledgehammer. That's the whole point of this sort of activism: to get your opponent to over-react. But the thing is, he talks about manifestos and guerilla actions and "information is power," and it's all super shallow compared to a country railroading thousands of young people into prison. When confronted with actual power, Aaron Swartz folded.
posted by ennui.bz at 10:44 AM on March 6, 2013


That's a little harsh. Easy for all of us armchair cynics to say the guy folded. Maybe he was wrong about some stuff, but he lived according to his convictions and made a difference in this world.
posted by KokuRyu at 10:46 AM on March 6, 2013 [6 favorites]


Meanwhile real political crime is being committed - obviously they have their priorities right. Time for Holder to take a hike.
posted by specialk420 at 10:47 AM on March 6, 2013 [1 favorite]


I may have missed this among the links, but Larry Lessig has a semi-memorial talk worth watching as well: Law, Leadership and Aaron Swartz.

ennui.bz: He wants to live this fantasy life of an poltical activist but just had no way of dealing with shit getting real... not the best candidate for radical politics.

As background, it's maybe worth keeping in mind that he was an absurdly effective advocate for online causes, by anyone's standards let alone someone who died so young, on projects from RSS to Creative Commons to SOPA. That we found his limits as a champion for the things he cared about doesn't mean that there was a better one.

Anyway, Lessig says in that talk that he disagreed with Swartz's call for civil disobedience, in part because "shit getting real" is so disproportionate in the case of computer crime. For example (without analogizing their struggles in general) MLK was able to break the law on dozens of occasions and never serve more than 30 days in jail or be charged with a plausible felony -- whereas Swartz's disobedience risked throwing his life away over a single near-harmless act. (Lessig also lays out why there may well have been no crime at all here, and why the act was most likely functionally harmless.)

I'd imagine that Swartz had trouble imagining that those throw-your-life-away laws would really be applied to him ... in the same way I imagine that most people don't think they'll really end up owing $1.5 million to a record company if they download an album's worth of mp3s. It's not that they're insufficiently radical, it's that the disproportionality is hard to comprehend.

according to Aaron's attorney the offer on the table from the DOJ was 6 months a plea they rejected.

Without singling anyone out, I wonder how many folks here have served, say, one month in jail. In America over the last few decades we've simultaneously warped our perspective of how long a prison sentence should be, and made our prisons much less humane by refusing to spend money in proportion to our new levels of incarceration.

I don't know if it's better on the federal level, but in the state system in Massachusetts, practically every facility we have is over capacity. That jail that looms over MIT -- the building with the orange stripe around the 15th floor that I see every morning from the train on my way to work -- that jail is at 250% capacity. Let me rephrase: that jail has 376 people convicted of relatively minor crimes, people with a world full of personal issues, crammed into space designed for 160. Let me rephrase: please right now imagine someone you love becoming inmate #377 from now until September.

Six months somewhere like that -- after giving up your right to trial, for a nonviolent act that probably wasn't a crime and caused no financial harm -- is not a generous offer in the grand scheme of things. It may be a generous offer from a prosecutor who is determined to make an example of you, only if the law allows such absurdly disproportionate sentences that you effectively have a knife to your throat. So the "hey, we're charging you with crimes carrying up to 35 years in prison" is definitely a presence in the conversation.

I worked on this in a different context recently, where the question was basically, do grand juries need to know the difference between an indictment for murder and an indictment for manslaughter? Grand juries receive no instruction on the law in Massachusetts, and both murder and manslaughter are defined to the jury as basically "A intentionally killed B." So prosecutors can get murder indictments even if it's obvious that manslaughter is the highest reasonable conviction -- the grand jury doesn't know that manslaughter exists.

One of the arguments about why this is fine is, hey, if there's no evidence for murder the petit jury can figure that out at trial -- they'll be instructed on the law and can choose. But the truth is that the vast majority of cases are decided between the prosecutor and the defendant in a plea bargain and never see a trial jury. So if prosecutors can get a murder indictment against someone they think committed manslaughter, they can strongarm them into the plea without ever needing to make their case to a jury. It's not much of a bargain.

Which is to say: the maximum sentence the prosecutor can make a serious threat about matters. In this case, by the way, if Aaron had been charged with voluntary manslaughter the maximum sentence would have only been 20 years.
posted by jhc at 10:51 AM on March 6, 2013 [24 favorites]


What was Swartz's aim here? Did he think he wasn't going to get caught, even though he kept getting blocked in his attempts to suck down this data?
posted by smackfu at 10:52 AM on March 6, 2013


That's a little harsh. Easy for all of us armchair cynics to say the guy folded. Maybe he was wrong about some stuff, but he lived according to his convictions and made a difference in this world.

Making a suicide into martyrdom is treading on really difficult territory. Read the Quinn Norton piece and try to not see her blaming herself for his death. I feel bad for all of them but making Swartz into someone better than he was ends up putting a burden on everyone who loved him: they failed him.

Anyway, Lessig says in that talk that he disagreed with Swartz's call for civil disobedience, in part because "shit getting real" is so disproportionate in the case of computer crime. For example (without analogizing their struggles in general) MLK was able to break the law on dozens of occasions and never serve more than 30 days in jail or be charged with a plausible felony -- whereas Swartz's disobedience risked throwing his life away over a single near-harmless act. (Lessig also lays out why there may well have been no crime at all here, and why the act was most likely functionally harmless.)

I'd imagine that Swartz had trouble imagining that those throw-your-life-away laws would really be applied to him ...


Now, why would Swartz have trouble imagining that? Because he wasn't some asshole on the street in W'ster? His life wasn't going to be ruined by 3 months in jail and a felony conviction. Shit is disproportionate for lots of cases, most of them for kids with nothing going for them. The same internet libertarians who want a martyrdom will turn around and talk about "union thugs" and blame poor people for being poor. Spend a week in district court and see lives being ruined every fucking day.
posted by ennui.bz at 11:04 AM on March 6, 2013


Aaron Swartz was clearly a great guy and I sympathise with his politics and his belief in open data. On the other hand, and with the respect due someone who died and those people close to him who suffered through the grand juries and his tragic end, this kind of direct action is dangerous. I can't help but feeling that this is what happens when "we're all friends" liberalism and silicon valley activism meet the cold unyielding force of institutional power.

I've had friends who've gotten entangled with the law in similar activist circumstances and there's often a shocking moment when they realise that when it comes to the nature of state power the basic belief of liberalism (that institutions like the courts and the DoJ are basically good but just need checks on their power and occasional reforms) is wrong and the attitude of old-school lefties (that these are fundamentally enemy institutions) is right.

A lot of old-school leftist activists have gone to jail or narrowly avoided it in the Western world and that has bred certain helpful habits. I have the greatest of sympathy for Ms. Norton - I don't know her but I know a lot of people like her, at least as she comes across in the article linked above - but when she said that she just wanted to 'explain' to the prosecutors that Aaron was basically a good guy I just wanted to scream.

Johnny Spamanato might not have known much, in the sense of formal education (like the difference between the fifth amendment and commandment), about how power is structured in America but when Frank Sobotka asks him what he says to a grand jury he knows that he don't remember, and he knows that what he don't remember is nothing.

Aaron Swartz and his friends were in an in-between place.

Their economic, racial, educational, whatever privileges left them with a view of the justice system as flawed but ultimately positive and fair in principle if not in execution. On the other hand, despite structurally benefiting from many aspects of 21st century bourgeois democracy, they took up a position that the system considered threatening.

I'm not dismissing him or his suffering because he came from a privileged background - just pointing out that if someone from a marginalised background took up a campaign of direct action he would be prepared for the response from state power.

When you combine that background that with an ideology that - unlike contemporary flavours of anarchist or Marxist thinking - doesn't have an intrinsically oppositional view of state power (Marxists, of course, are only opposed to the state power on non-Marxists) - you get someone that the state comes after hard who doesn't have the right responses and mental armour to deal with that state response.

They knew that what they were doing - fighting for open information - had the potential to radically change the world for the better. What I think they missed is that institutions don't like radical change and may not agree that the outcome would be better.

Plenty of people are seeing that what he did was not in any sense a radical challenge or a serious crime. I'm not singling anyone out because I see it all over the place here and on other sites, but the mistake is fundamentally the same one that he made: applying a loyal-opposition soft-left liberal view to state and other institutional power. In that sense, of course he only downloaded some academic data from JSTOR and neither they nor MIT really wanted the prosecution to go through.
In the view of someone with a more systematically skeptical view of state power, what he did was be part of the same broad movement as wikileaks and the fact that he had basically no involvement with them doesn't matter. As far as the institutions of the state were concerned he was an enemy and they were going to get him and make an example.

I think Aaron was a wonderful guy, and he struck me as highly intelligent when I had the opportunity to meet him a few years ago. He really is an enormous loss for everyone. I hesitate to say this, because it's exactly what 'they' want to happen, but I would urge anyone who isn't extremely tough to be careful about their activism. Being a sweet, positive, optimistic person won't protect you from the mill of power if you get pulled into it.
posted by atrazine at 11:05 AM on March 6, 2013 [16 favorites]


the defendant is a political enemy of the government

The defendant wasn't even a political enemy of the government. That's the ridiculous part. The Obama admin has been pushing open access all over the place. Billions in grants for open educational materials and continued support for PubMed and other databases. I think the prosecutor decided that "manifesto" would help him tell the jury that Swartz was a dangerous cyber criminal intent on wanton theft of property.

Federal prosecutors are hyper-competitive people who are pushed through a system that places tremendous pressure on them to secure convictions and avoid "losing" at any cost. Thus prosecutors look for cases they can win, regardless of the truth or objective interests of justice. It is really sad we've turned the DOJ into a collection of used car salesmen who will do anything to put a guy in a box and pad their quarterly numbers.
posted by humanfont at 11:09 AM on March 6, 2013


The problem with this case is that Swartz's suicide badly clouds everybody's ability to read what took place. It's simply too hard to resist the reading that he was "driven to suicide" by Government "persecution." But really, a moment's thought should tell us that that's kinda silly. People facing 3 months or so in prison (which is the most that Swartz would have actually been likely to have to face--the fixation on the theoretical "maximum" sentence is ridiculous) do not normally commit suicide at the prospect; it is not typically regarded as a "fate worse than death." (And this is not to downplay the very real point made above that prisons in the US are often hideously overcrowded and unsafe and that prison sentences have become absurdly and abusively long). Whatever made Swartz commit suicide it was clearly a more complex, personal and deep-rooted matter than simply the threat of facing a few months behind bars. While it is true that for many people having a criminal record can be a real bar to future employment prospects, for Swartz--in the kind of circles he moves in and for the kinds of jobs he would want to do--it would have been if anything a badge of honor ("Look what I endured for the sake of freedom!!").

If we take the suicide out of this story, then the whole thing becomes pretty mundane, even if we agree that this was a case of prosecutorial overreach (hardly a new and unheard of problem in US courts--and this one a far less egregious one than myriad others). The case never even got to trial, after all--nor is it clear that some kind of settlement not involving prison time could not have been negotiated. No one thinks that the government was simply inventing a case out of whole cloth (the argument is mostly about whether it was worth prosecuting, not whether some kind of reasonably plausible criminal case could be made at all). There are all kinds of ways this story could have gone--sans the suicide--where it hardly seems newsworthy at all outside of Swartz's particular world.
posted by yoink at 11:33 AM on March 6, 2013 [2 favorites]


>That's a little harsh. Easy for all of us armchair cynics to say the guy folded. Maybe he was wrong about some stuff, but he lived according to his convictions and made a difference in this world.

Making a suicide into martyrdom is treading on really difficult territory.


I would tend to degree, actually, although I think it's worth noting Swartz was in a lot of physical and psychic pain when he committed suicide. He also did a lot more stuff to make the world a better place in his short life (the fundamental philosophy behind RSS, for example) than I ever have, so to say he "folded" seems to be somewhat harsh (not intending to single anyone out here, by the way), that's all.

But I do agree with your comment (see my New Yorker link above). Just think we could all be a little kinder (not saying you aren't being kind either).

Interestingly, it turns out Swartz was a cousin of a friend of mine here in XYZ small city in Canada; I studied with said friend's father at university, and worked on some projects related to internet with his mom. Small world indeed.
posted by KokuRyu at 11:34 AM on March 6, 2013


just pointing out that if someone from a marginalised background took up a campaign of direct action he would be prepared for the response from state power

While I broadly agree with your points, this particular bit I think is not really fair to Swartz. LulzSec's Sabu was pretty marginalized—he lived in public housing with his grandmother because his father was in prison—but that didn't somehow confer on him a magical ability to stand up to the FBI when they came knocking; he became an informant. It's not that Swartz was unprepared to face decades in prison because he was a rich kid with soft-liberal illusions; he was unprepared to face decades in prison because basically no one is prepared for that. That's the entire purpose of prison.

I'm impressed that those grand jury resisters in the Pacific Northwest managed to stand up to months of solitary confinement without giving in, but they are the exception, not the rule.
posted by enn at 11:52 AM on March 6, 2013 [6 favorites]


This is from several days ago, and I never got around to making a FPP about it so I'll leave it here: What the Internet did to Aaron Swartz, a profile in The New Republic featuring a few quotes from mathowie.
posted by torticat at 11:56 AM on March 6, 2013 [3 favorites]


Whatever made Swartz commit suicide it was clearly a more complex, personal and deep-rooted matter than simply the threat of facing a few months behind bars.

The New Yorker article cited above makes this very clear.

People facing 3 months or so in prison (which is the most that Swartz would have actually been likely to have to face--the fixation on the theoretical "maximum" sentence is ridiculous)

According to the HuffPo article cited by the blog in the FPP by Taren SK, who was Aaron Swartz's girlfriend, the three month plea would have also included an opportunity for Swartz's lawyers to argue before a judge that he didn't deserve jail time. I assume this means he could have petitioned for a suspended sentence or time served.

The Swartz case has spurred a movement to change the laws used to indict him, and legal scholars and organizations are weighing in on the proposed changes (including one from the Electronic Frontier Foundation to exclude Terms of Service violations from criminal prosecution. There's a good article on the proposed legal reforms at TechCrunch here.
posted by foxy_hedgehog at 11:56 AM on March 6, 2013


he was unprepared to face decades in prison

He had no reason to think he was facing "decades in prison" and it's a silly distortion of what happened to pretend that he did.
posted by yoink at 12:59 PM on March 6, 2013 [1 favorite]


rich young white people discover the US justice system... hilarity ensues.

Someone died.

Someone killed himself. There's a difference.


Oh, now I get it, hilarious!
posted by Drinky Die at 1:03 PM on March 6, 2013 [2 favorites]




In defense of Aaron Swartz maybe not being that naive due to privileged background: it takes a certain kind of hubris to think, when you are not of one of the categories that gets targeted by police merely because of the circumstances of your birth regardless of your actual actions, that the particular activism that you are engaged in is going to be so world-changing and relevant that it will lead to your targeting for political persecution or even federal prosecution (and not just hassled by local police). For activists who are making a significant difference, there's a probably thin line between realistic threat assessment and paranoia. It sounds, from quotes from Swartz' blog that I've read in various articles, that he was in fact (perhaps not so healthily) on the opposite end of the hubris spectrum.
posted by eviemath at 1:04 PM on March 6, 2013 [2 favorites]


the fixation on the theoretical "maximum" sentence is ridiculous

The third sentence of the DOJ's press release was "If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million." ("To be followed" has a nice air of inevitability about it, incidentally. Not to mention the air of a fancy menu.) No, he wasn't going to end up serving that much time, but the prosecutor put it front and center for a reason -- it was the operative fact of the whole negotiation, and thus of much of Swartz's life under indictment.

No one thinks that the government was simply inventing a case out of whole cloth (the argument is mostly about whether it was worth prosecuting, not whether some kind of reasonably plausible criminal case could be made at all).

It might depend how plausible you want it to be. The charges were originally "wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer" before the government voluntarily dropped some of them. The remaining ones were maybe colorable, if you accept the theory that changing a MAC address is circumventing code-based restrictions even though just using another computer obviously wouldn't be. But it was at best a legally and factually tenuous prosecution without much precedent behind it -- because when someone uses an authorized connection to download stuff they're authorized to download, but maybe with the intent to do something with it the owner doesn't want them to do, it makes no sense to treat that as a criminal violation. At least, it doesn't cross my personal line for reasonably plausible.

This maybe connects to whether he should have anticipated this level of prosecution. Here's Duke law professor James Boyle: "I didn't think nor do I think anyone would think beforehand -- and here I most emphatically disagree with Orin -- that the charges would have inevitably been brought at this level or accompanied by this level of threatened punishment." If we were talking, I don't know, "I had no idea the government would overreact to such a small amount of cocaine," then yeah, you should have pretty much seen that coming at this point. But this is something that was not obvious in advance.
posted by jhc at 1:04 PM on March 6, 2013 [4 favorites]


It's kind of hard for me to believe that people are defending the DoJ here
rich young white people discover the US justice system
if I didn't know better, I'd say that the #firstworldproblems meme is being propagated to make collective action inefficient or impossible
posted by This, of course, alludes to you at 1:05 PM on March 6, 2013 [7 favorites]


6 months plus a felony conviction. Don't leave the felony part out.

This brings up a point that I think is underlooked in America--what is the point of the "felony" distinction anymore? It strikes me as a completely useless anachronism--I believe it originally involved confiscation of the person's assets. Felonies were murder, robbery, rape, that level of crime. People seem to want to make everything a felony today (example from Metafilter past, on cockfighting and domestic violence--neither admirable behavior to be sure, but not murder either). What point is there to forcing Swartz to "check the box" in the future?

Secondarily, I have been consistently amazed at how many people who are politically aligned with Swartz have expressed surprise at the prosecutor's actions and that this is somehow related to Swartz's politics. Threatening defendants with massive sentences after trial--and the prosecutor threatened to recommend seven years if convicted at trial--is absolutely standard procedure for federal prosecutors. From a report of Eric Holder's testimony today:
But Holder rejected the notion that the prosecutors had been overzealous, noting that Swartz had been consistently offered plea bargains that would’ve required him to spend only a few months in prison. “There was never an intention for him to go to jail for longer than a three-, four-, potentially five-month range,” said Holder.

Watching the livestream of the session, I was astounded at how freely Holder admitted that this was the goal all along. So was Cornyn, apparently, and he followed up with an excellent question: “Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines, and then offer him a three- or four- month prison sentence?” (Swartz was actually facing up to 50 years in prison.)

Holder responded that, no, he didn’t think it was odd at all. Cornyn pressed the point:

Cornyn: So you don't consider this a case of prosecutorial overreach or misconduct?

Holder: No, I don't look at what necessarily was charged as much as what was offered, in terms of how the case might have been resolved.
This happens all the time in federal prosecutions--the prosecutor has in mind what he or she views as a "correct" punishment, and that's what is offered--and if you reject it, expect many multiples higher. It happened in the Abramoff scandal. It happens all the time. This is what happens when you have extremely draconian sentences and very malleable laws. I mean, Ed Meese has complained about this.

Look, I don't personally agree with what Swartz did, though I think a reasonable penalty would have been probation and community service (possibly with some period of home confinement, probably not). I get that a lot of people disagree with this. OK, fine, whatever. But as a procedural matter, you cannot cheer on, say, charging Dharun Ravi with 15 counts for his actions, and then act shocked when the same behavior happens to someone you like.
posted by dsfan at 1:20 PM on March 6, 2013 [4 favorites]


No, he wasn't going to end up serving that much time, but the prosecutor put it front and center for a reason -- it was the operative fact of the whole negotiation, and thus of much of Swartz's life under indictment.

And if Swartz were a rather stupid person who was operating without legal counsel, that would be a relevant point. He was not. He knew perfectly well, just as his lawyer did, that years in prison was simply not one of the possible outcomes of this case.

This maybe connects to whether he should have anticipated this level of prosecution. Here's Duke law professor James Boyle: "I didn't think nor do I think anyone would think beforehand -- and here I most emphatically disagree with Orin -- that the charges would have inevitably been brought at this level or accompanied by this level of threatened punishment." If we were talking, I don't know, "I had no idea the government would overreact to such a small amount of cocaine," then yeah, you should have pretty much seen that coming at this point. But this is something that was not obvious in advance.

But "obvious in advance" was not what I said--what I said was "the argument is mostly about whether it was worth prosecuting, not whether some kind of reasonably plausible criminal case could be made at all." Even Swartz's own lawyer, in that excellent New Yorker piece linked above, admits that he could see the force of the prosecution's case.
posted by yoink at 1:26 PM on March 6, 2013 [2 favorites]


He was not. He knew perfectly well, just as his lawyer did, that years in prison was simply not one of the possible outcomes of this case.

I don't think this is right. He absolutely had reason to fear a "guidelines" sentence of seven years, which is what the prosecutor said would be the post-trial recommendation (according to the defense attorney, but he has no obvious reason to lie about this). The majority of federal sentences are within guideline range, with the second biggest grouping being government-sponsored departures. The guideline range depends largely on what the government could convince the judge was the actual loss, and it's not certain the judge follows the guidelines, but a multi-year prison sentence was definitely a possible outcome.
posted by dsfan at 1:37 PM on March 6, 2013 [2 favorites]


I agree with above that it's very hard to separate out the suicide from the rest of the case. The worst possibilities being discussed here are not the death sentence that he gave himself.
posted by smackfu at 1:47 PM on March 6, 2013


I don't think this is right. He absolutely had reason to fear a "guidelines" sentence of seven years, which is what the prosecutor said would be the post-trial recommendation (according to the defense attorney, but he has no obvious reason to lie about this).

Sorry, yes, you're right. I should have written more carefully. What I meant was that he had absolutely no reason to serve more than three months (at the outside) should he choose to take the plea deal he was offered. It is conceivable that had he chosen to go to trial he might have ended up with a longer sentence. It is also very possible he could have ended up acquitted, or given a suspended sentence or fined or any one of a number of things. Talking about what a prosecutor says during plea-bargain negotiations as if anyone thinks that they are actual, probable outcomes seems patently absurd.
posted by yoink at 2:17 PM on March 6, 2013


Missing from this discussion is what MIT did. Which is all they could hope for.
posted by Twang at 4:28 PM on March 6, 2013 [3 favorites]


I suspect Aaron Swartz fell too far towards the non-paranoia not-overtly-egotistical end of the hubris spectrum, like eviemath said, well TarenSK said so. Yet, all the important seemingly-non-egotistical people I know spend that egotism elsewhere, commonly on their own notion of "doing the right thing". Aaron seemingly did so as well.

Our corrupt evil justice system presented Aaron with a deep wrong paired with epic disincentives for "doing the right thing". So his sublimated ego outed itself by going almost Mohamed Bouazizi.

I've zero clue what thoughts went though his head of course, but he probably wasn't forming a conscious protest, like say Thich Quang Duc did. He simply faced a deeply evil choice foisted upon him by the DOJ between "admit that your did wrong" or "society will try hard to prove you did wrong." Except Aaron did nothing wrong at all. Ortiz and Heymann are the ones who should be locked away.

If he'd set himself on fire outside the court house, then we'd probably still have him with us, and have this discussion to boot, but perhaps his ego was too far gone for even that. I'm guessing the suicide rate is high in places with monks setting themselves on fire.
posted by jeffburdges at 5:22 PM on March 6, 2013


This isn't about prosecutorial overreach, it is about the extent to which people who know smart crazy people will kid themselves into believing that they are just quirky or quixotic or just need to get more sleep or drink a little less.
posted by MattD at 6:35 PM on March 6, 2013


Man there are some tough mother fuckers on this here MetaFilter web blog tube, just laughing off the prospect of being very publicly indicted by a federal prosecutor and facing 35 years in prison.

Can we just turn this thread into stories of the experiences you all have had in life that were more hard core than a 35-year indictment by the DOJ? Because that sounds like some real John McClane-style shit.
posted by crayz at 9:56 PM on March 6, 2013 [9 favorites]






In case this is getting too tl;dr for you, here are (what I consider to be) some awesome comments from the above (snippets given, along with links to the original):

Etrigan: That happens all the time. Piling up every possible crime the defendant may have committed (trespassing, theft, burglary, use of a weapon while trespassing, use of a weapon while committing theft, use of a weapon while burgling...) and saying "You're going to spend the rest of your life and your kids' lives and their kids' lives in prison, or we can give you 1/70th of that" is the entire point of plea bargains.

jhc: Six months somewhere like that -- after giving up your right to trial, for a nonviolent act that probably wasn't a crime and caused no financial harm -- is not a generous offer in the grand scheme of things. It may be a generous offer from a prosecutor who is determined to make an example of you, only if the law allows such absurdly disproportionate sentences that you effectively have a knife to your throat. So the "hey, we're charging you with crimes carrying up to 35 years in prison" is definitely a presence in the conversation.

humanfront: Federal prosecutors are hyper-competitive people who are pushed through a system that places tremendous pressure on them to secure convictions and avoid "losing" at any cost. Thus prosecutors look for cases they can win, regardless of the truth or objective interests of justice. It is really sad we've turned the DOJ into a collection of used car salesmen who will do anything to put a guy in a box and pad their quarterly numbers.

enn: It's not that Swartz was unprepared to face decades in prison because he was a rich kid with soft-liberal illusions; he was unprepared to face decades in prison because basically no one is prepared for that. That's the entire purpose of prison.
posted by JHarris at 12:41 AM on March 7, 2013


Can we just turn this thread into stories of the experiences you all have had in life that were more hard core than a 35-year indictment by the DOJ? Because that sounds like some real John McClane-style shit.

Test time. Which of the following would you choose?

(a) Spending 35 years in prison if convicted on all counts in trial
(b) Killing yourself
(c) Spending at most 6 months in jail if you accept a plea bargain

The fact that you may prefer (b) to (a) doesn't make (b) a "rational" choice if (c) is also on the table. But yeah, explaining suicide by referring to the "sublimated ego" and the fundamental lack of "generosity" in an offer of a 6-month sentence is great is really wonderful, we are really making some breakthroughs in mental health studies on this thread.
posted by leopard at 6:05 AM on March 7, 2013


This isn't about prosecutorial overreach, it is about the extent to which people who know smart crazy people will kid themselves into believing that they are just quirky or quixotic or just need to get more sleep or drink a little less.

we are really making some breakthroughs in mental health studies on this thread.

sigh.
posted by eviemath at 6:28 AM on March 7, 2013


The fact that you may prefer (b) to (a) doesn't make (b) a "rational" choice if (c) is also on the table.

One time a friend of mine took a picture of the FBI building in downtown DC. The guard immediately came over and told him he wasn't allowed to do that and was required to delete the photo. My friend asked why, and the guard said because he had taken the photo while standing on the FBI's sidewalk, that actually was not public property and he was not allowed to take that photograph.

So while this was going on, I walked out into the (public) street and took a photo of the two of them in front of the building. The guard said "hey wise guy, get over here". He then threatened us both with being thrown in the DC jail over the weekend until we were seen by a judge on Monday, and said "think you'll survive a weekend in there, pretty boy?"

So yeah, I think some people need to wake the mother fuck up regarding the way this stuff actually works, and stop describing people they don't know as "irrational" and "mentally ill" based on threats of at least months in a prison system where sexual assult is endemic to the point where it's the subject of national studies and pervades our humor.

And the horrific risk of fighting the charges, and the internal conflict in someone with resolute convictions facing the threat of decades of torture for doing what those convictions would demand.

His death has spurred more action on the issues he cared about than most people will ever accomplish in their lives. Stop spitting on his grave.
posted by crayz at 2:48 PM on March 7, 2013 [5 favorites]


It is not spitting on someone's grave to say that their suicide was not a political act or a moral statement. If Swartz had left a suicide note, I would be inclined to take him at his word.
posted by leopard at 5:57 PM on March 7, 2013


I mentioned Bouazizi precisely because his self-immolation was definitely not a well thought through act either, leopard, but it certainly was political.

As eviemath paraphrased from TarenSK and others, Aaron never understood that his persecution was political like everyone else did. So his suicide doesn't look political because he didn't think it was himself.

Yet, it's clearly an act of rebellion against the evil that Ortiz and Heymann were doing to him. Is it a moral statement? Yes actually, but of a subtle kind. Is it political? Yes, since what he was fighting was actually political.

I've friends who exhibit exactly this sort of self-destructive behavior when confronted with immorality. Academics who take their names off papers over weird subject politics fit, for example.
posted by jeffburdges at 6:36 PM on March 7, 2013 [2 favorites]


Yeah, I guess he's basically a blank slate that you can read into however you want. I was personally raised by parents who thought that self destructive behavior was just the natural response of beautiful sensitive souls to a world full of injustice and I've come to think that that's some really stupid bullshit, but if you want to weave together bits and pieces of this story to inspire yourself and others, more power to you.
posted by leopard at 7:42 PM on March 7, 2013


at least no one used his connections to reddit and cory doctorow to smear him

"fuckin" nerds am i right, all killing themselves and shit
posted by This, of course, alludes to you at 1:30 AM on March 8, 2013 [1 favorite]


Well obviously Swartz didn't kill himself, he was murdered. Are we going to prosecute the persecutors?
posted by leopard at 4:26 AM on March 8, 2013


Er, you're going a bit beyond my actual comment in attributing stuff to me, jeff.
posted by eviemath at 6:18 AM on March 8, 2013


Alright, TarenSK says precisely that, seen similar elsewhere too, assumed that's what you meant.

Eric Holder says Aaron Swartz Case Was a ‘Good Use of Prosecutorial Discretion’ (this story on wired)
posted by jeffburdges at 6:40 AM on March 8, 2013 [1 favorite]


From dsfan's link to the Abramoff story:
Justice Department attorney Nathaniel Edmonds responded that a stiff sentence would not be a punishment for going to trial. He said that cooperating defendants are rewarded with leniency, a distinction repeatedly upheld by the Supreme Court and frequently used in prosecutions. "It's not retaliation," Edmonds insisted over grumbling from Ring's supporters in the courtroom's public benches.
And now, from Jeff Burdge's link to the Wired story on Eric Holder:
Holder responded: “I think that’s a good use of prosecutorial discretion to look at the conduct, regardless of what the statutory maximums were and to fashion a sentence that was consistent with what the nature of the conduct was. And I think what those prosecutors did in offering 3, 4, zero to 6 was consistent with, with that conduct.”
If Holder thinks that 3 to 6 months was an appropriate sentence based on Swartz's past conduct, and is not leniency based on his co-operation, then how in the world does a 35-year sentence not constitute retaliation?

Let me ask the question a little differently: If the AG really thinks that 0.25 years or 0.5 years is a punishment that fits the crime, shouldn't he be bothered that prosecutors sought a sentence 70 to 140 times greater than what was appropriate?
posted by compartment at 9:35 AM on March 8, 2013


As near as I can tell, the seeking of disproportionately gigantic sentences has become a fundamental tool of prosecutors to try to get people to settle out of court. The problem with that is, those kinds of tactics always get abused, eventually. They were a workaround to the overburdened court system, when the solution was always to expand courts, not work around them.
posted by JHarris at 10:15 AM on March 8, 2013 [2 favorites]


If the AG really thinks that 0.25 years or 0.5 years is a punishment that fits the crime, shouldn't he be bothered that prosecutors sought a sentence 70 to 140 times greater than what was appropriate?

The prosecutors didn't seek that sentence. The prosecutors chose charges that could have led to that sentence. There's a difference, and it goes to what Holder was claiming: if Swartz had been convicted, the DOJ would have asked for a much lighter sentence.

And as JHarris points out, "35 years" is a huge cudgel to swing around to get people to agree to a sentence that's "consistent with what the nature of the conduct was."
posted by Etrigan at 10:21 AM on March 8, 2013


Sorry, Etrigan, you are correct. I should have said that he was threatened with those charges, not that they sought them. Sloppy wording on my part.

But Aaron was at the very least looking at a trial where prosecutors intended to fight for a seven year sentence. I think my central point -- that they would have gone to trial seeking a sentence far beyond what was thought to be appropriate -- still stands.

I just don't see Holder's position as logically coherent. He believes that the prosecutors didn't overreach, but he believes a fair sentence is multiple orders of magnitude less than what they threatened and at least ten times less than the actual sentence they were prepared to seek.
posted by compartment at 11:13 AM on March 8, 2013


But Aaron was at the very least looking at a trial where prosecutors intended to fight for a seven year sentence.

According to his lawyer, I note.

And the "multiple orders of magnitude" argument ignores that, as I said above, telling someone, "You're going to spend the rest of your life and your kids' lives and their kids' lives in prison, or we can give you 1/70th of that" is the entire point of plea bargains. This one wasn't particularly egregious in that aspect.
posted by Etrigan at 11:37 AM on March 8, 2013


I understand the point of plea bargains, and I think there are many, many cases where plea bargains can potentially be good for both prosecutor and defendant. But it is an abuse of the system if, in order for prosecutors to secure a plea bargains that are fair, defendants who exercise their right to a jury trial will receive a sentence far in excess of what is fair.

I regret not waiting longer to comment, because I feel like I've muddled the thread figuring out how to express myself on this. Here it is as clearly as I can muster -- I'll hush up for a while after this comment.
  1. Holder says that three to six months was deemed a fair sentence in light of the crimes Aaron is alleged to have committed.
  2. The determination of fairness was made on the basis of Aaron's past actions, not on his willingness to cooperate.
  3. At trial, prosecutors were going to seek a penalty far in excess of what had already been deemed fair on the basis of the alleged crimes.
If Swartz's lawyer is wrong, and prosecutors did not intend to seek such a heavy penalty, that changes the situation somewhat. But unless the prosecutor's office is more forthcoming in the near future, our best hope for a definitive answer is to wait for the results of FOIA requests that I hope will be processed in good faith.
posted by compartment at 12:20 PM on March 8, 2013 [2 favorites]


But it is an abuse of the system if, in order for prosecutors to secure a plea bargains that are fair, defendants who exercise their right to a jury trial will receive a sentence far in excess of what is fair.

I don't disagree. But "fair" is a harder concept to pin down. I presume that we agree that three ideas can be simultaneously true:
Idea 1 -- Society, via its duly elected and appointed officials, determines the "fair" punishments for crimes that members of that society commit.
Idea 2 -- Society has decided that it is often better to plea-bargain to lesser punishments than it considers "fair," so as not to burden the justice system with pointless trials in cases where the defendant knows he or she has no real chance of being found not guilty.
Idea 3 -- The punishments determined by society, or its duly elected and appointed officials, are not always actually "fair," for a variety of reasons.

Under Ideas 1 and 2, if I commit Crime A, which society has decided is worthy of punishing by putting me in prison for 10 to 15 years, then a plea bargain to Crime B, which society has decided is worthy of punishing by putting me in jail for 3 to 6 months, is not "fair" to society, but society has decided that in some cases, fairness is less important than convenience. If I decide not to take that plea, get convicted and receive a punishment of 12.5 years in prison, then I did not "receive a sentence far in excess of what is fair" -- to the contrary, I received a sentence that was absolutely "fair," in the judgment of the society of which I am a part, despite that sentence being 25 to 50 times what I would have received if I'd taken the plea bargain.

Reasonable people can disagree about Idea 3 in this case. But that doesn't mean that Ideas 1 and 2 are fundamentally flawed.
posted by Etrigan at 12:53 PM on March 8, 2013 [1 favorite]


It is also worth pointing out that what the prosecutors intended to ask for in court is not in any way necessarily the same thing as what Swartz would have received had the case gone to trial.
posted by yoink at 1:28 PM on March 8, 2013


I just had a really cool conversation with a couple of Mass. defense attorneys who are seeing the Aaron Swartz conversation play out in other cases. One is a sentencing after trial where the judge gave (I think) about 1/5th of the guideline sentence, much closer to the sentence the defendant would have gotten in a plea bargain, saying that exercising your right to trial shouldn't be punished by a huge increase in sentence and explicitly referring to Aaron. Another is a pre-indictment negotiation where a prosecutor seemed to recognize the psychological consequences for a mentally unstable defendant of bringing a bogus trafficking charge with a huge mandatory minimum in order to get a plea to possession.

So for those worried that this conversation is only about privileged defendants ... Happy Friday. Good things are happening.

Talking about non-famous, mentally unwell defendants also made me rethink the significance of suicide here. I would have said, suicide is a profoundly personal -- and irrational -- act and it's not fair to hold one person responsible for another's suicide. And that's true. But now I want to also say, a system that sees people, troubled people, as no more than opportunities to teach an object lesson, that system is going to create tragedy in the world. We don't have to draw a straight line of cause and effect to learn something here.
posted by jhc at 4:28 PM on March 8, 2013 [7 favorites]




Jeez, we need a detailed list of every federal prosecutor that has ever brought a CFAA indictment so that we can make sure none get judgeships or political gigs.
posted by jeffburdges at 7:11 AM on March 19, 2013








How Weev’s Long Prison Term Makes You More Vulnerable

"Auernheimer was convicted under the 1986 Computer Fraud and Abuse Act, a dubiously vague federal statute also used to hound internet activist Aaron Swartz..."
posted by homunculus at 10:20 AM on March 20, 2013 [2 favorites]






Rather Than Fix The CFAA, House Judiciary Committee Planning To Make It Worse... Way Worse (via shashdot.org)

Supposedly the draft bill "Adds computer crimes as a form of racketeering. Expands the ways in which you could be guilty of the CFAA — including making you just as guilty if you plan to 'violate' the CFAA than if you actually did so. Ratchets up many of the punishments. Expands the definition of 'exceeding authorized access' in a very dangerous way. Makes it easier for the federal government to seize and forfeit anything." and "[their] goal is to try to push this through quickly, with a big effort underway for a "cyberweek" in the middle of April that will force through a bunch of related bills."
posted by jeffburdges at 2:42 AM on March 26, 2013 [2 favorites]






I'd wanted to make another post about the House wanting to worsen the CFAA and/or the new attempt at CISPA. I haven't figured out if that should be one post or two though because I cannot find any corroboration for Mike Masnick's "cyberweek" claim that they're being discussed along side one another, or what else might get discussed. 2012 saw that sort of "cyberweek" so maybe. Thoughts? If anyone else wants to do something, I'll send you my link pile.
posted by jeffburdges at 4:06 PM on March 30, 2013


on general stupidities and inequities in our legal system, relative to Gideon v. Wainwright and obtaining legal representation:
Moyers & Company: "And Justice for Some"
posted by XMLicious at 10:32 PM on March 30, 2013






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