Aaron Swartz's Death Leads To Public Attention Towards Prosecutorial Overreach
from the about-time dept
While we're already seeing things like Rep. Zoe Lofgren's attempt to reform the CFAA, and Rep. Darrell Issa's plan to investigate the DOJ, one interesting thing that has come out of the tragedy of Aaron Swartz's suicide is sudden public interest in prosecutorial overreach. Many criminal defense attorneys have been screaming at the top of their lungs that the pressure put on Swartz is nothing new -- it's how the game is played. And they're right (which is, in part, why I've suggested people check out the documentary Better This World which covers a very different type of case, by very clearly lays out similar efforts by prosecutors who want to win at all costs, and use threats and intimidation to force people into a plea bargain they think is unfair, because it's better than the alternative. The movie is heart-wrenching).Perhaps one good thing coming out of all of this however, is that more and more press outlets are suddenly paying attention to the wider issue of prosecutorial overreaction:
By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. According to the Wall Street Journal, Swartz was offered the choice of pleading guilty and going to jail for six to eight months, or else going to trial and taking his chances. The multiple counts and their absurdly savage sentences are best seen, just as the family said, as instruments of intimidation.That same article goes on to note: "And if a prosecutor should turn his righteous all-powerful gaze on you, you're done for." That's it, end of story. The likelihood of winning a case after federal prosecutors take you to court is minimal. And that's waking people up to the fact that the criminal justice system is insane:
The prosecutor's bottom line, apparently, was that Swartz had to go to jail. In my conception of criminal justice, the prosecutor's role is to establish guilt, not pass sentence. Juries have already been substantially dispensed with in this country. (By substantially, I mean in 97 percent of cases.) If prosecutors are not only going to rule on guilt unilaterally but also, in effect, pass sentence as well, one wonders why we can't also dispense with judges.
In recent years, as the Wall Street Journal has documented in a disturbing series of articles, Congress has enabled prosecutorial intimidation by criminalizing ever more conduct, passing laws that provide for or require extreme sentences, and reducing the burden of proof (through expanded application of "strict liability", where lack of criminal intent is no defense).
Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz's death, she should not be regarded as an anomaly. As the noted civil-liberties lawyer Harvey Silverglate points out in his 2009 book, Three Felonies a Day: How the Feds Target the Innocent, federal prosecutors have been given vague, broad powers that have led to outrages against justice across the country.We already covered some of this with Tim Wu's take on the prosecution, but it's still good to see more publications calling for change on this particular issue:
"Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career," writes Silverglate, a friend and occasional collaborator. "Whole families have been devastated, as have myriad relationships and entire companies."
...whatever opinion one has of Swartz's politics, the American criminal justice system, in its relentlessness and inflexibility, it's unduly harsh sentencing guidelines, requires serious reexamination.Part of that, of course, is getting the DOJ to stop focusing solely on "winning," and get them to start actually look at what is real justice. Instead, it now is clear that the prosecutors on Aaron's case were looking for a "juicy" case so they could get their names in headlines.
Heymann was looking for "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill," Peters said. Heymann, Peters believes, thought the Swartz case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."So, now is the time to get beyond just reforming the CFAA or copyright laws or whatnot, but to also look at what can be done to change the situation:
But Swartz's suicide may be the first to generate widespread sorrow and outrage over common prosecutorial tactics that put ordinary as well as extraordinary citizens at risk. The increasingly voluminous federal criminal code, the vagueness of its individual offenses (numbering about 4,500 in 2007), and its harsh mandatory minimum sentences -- combined with failures of Justice Department leadership -- regularly expose law-abiding Americans to prosecution for activities they have no reason to consider illegal.This kind of prosecutorial overreach impacts everyone in serious ways, generating lots of headlines, but doing little to nothing to actually help stop crime.
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Filed Under: aaron swartz, carmen ortiz, overreach, prosecutions, us prosecutors
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Petition to Fire U.S. Attorney Steve Heymann
https://petitions.whitehouse.gov/petition/fire-assistant-us-attorney-steve-heymann/RJKSY2nb
The petition to remove Ortiz already reached the 25k threshold.
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Re: Petition to Fire U.S. Attorney Steve Heymann
I spit in that bitches face... She makes me sick!
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Mmm, the AC is right, I do feel ashamed .
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Having the comment hidden behind a link is probably the least aggressive moderation technique I have ever seen or heard of.
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If anything, there's a good chance people don't even ignore reported comments.
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But I do think it helps discourage flooding though.
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Remember The Movement? Was that milked for all it was worth as well, in your eyes?
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http://blogs.hbr.org/cs/2013/01/aaron_swartzs_crime_and_the_bu.html
Wealthy, powerful people doing grossly inappropriate things that lead to multiple deaths - none prosecuted. One man only barely arguably bending the law, so called victims not pressing charges - felony jail time.
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Download publically available files and try to distribute them? 50 years imprisonment maximum with unlimited fines.
One of these is reprehensible.
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Re: Justice in America
Does ANY one else see these efforts like trying to stop IP infringement?
Crazy huh?
and these are the "freedoms" we fight wars about, Lovely...
Can China just take over now??
Or will the Net warriors and keyboard commandos finally take ACTION for once, I cannot do all this alone folks.
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I do however find it rather interesting that an alleged law student would consider it "milking" to point out the innate and vastly over proportional (in relation to the alleged "crime") prosecution of Aaron, as well as pointing to this event as a very valid need for judicial reform.
Some see milking. I see a valid wake up call for the public on overreach and overzealous prosecutors looking to "make a name" for themselves.
But to each their own. There's always going to be a need for idiots in the world. And AJ is fitting the bill quite nicely. Heck, he's probably doing what he's doing because he's suffering delusions of grandeur like the prosecutor in Aaron's case, and he's realizing that one day that might be his (AJ's) name in the spotlight and not there for a good reason. So he's trying to dismiss/handwave this away already and get the attention focused elsewhere, where it DOES NOT rightfully belong. The shortsightedness of some people is quite amazing.
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I'm again relatively comfortable saying that this AC is AJ yet again. Not signing in, as usual.
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Please do so head first.
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Impacting Everyone
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We must not let this go!
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So she is admitting to using threatening tactics to get the result she wanted, by promising what she could not deliver. She has in effect admitted to being a lying bully who cannot be trusted to see that justice is carried out properly.
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And very few (2% I think) ever see a jury.
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Karma
But she should be made an example of. It seems only fitting.
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Real Issues
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Huh?
I'm reminded of the Martha Stewart case, where they not only pulled this but threatened to destroy the life of a junior assistant trader if Martha did not cave; if you don't plead guilty, we will also prosecute the trader's assistant and seek the maximum sentence.
Oh, yeah, they also tried to charge Martha with perjury by counting the same evidence as the required two separate pieces (the secretary's testimony and her notes). Note that n the end, all the insider trading chrages were dropped for lack of evidence, but that did not stop them from sending her to jail for obstruction based on her deleting, then re-entering a notiation in her work log.
A similar sad statistic - the largest group being added to the sex offenders' list, and having their lives ruined forever, are teenagers 14 to 18. Why? Because prosecutors can quote their statistics "added 50 offenders to the sex registry" but do not have to give details "for perfectly normal teenage behaviour". (Sexting or sex).
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America judicial system
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America judicial system
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America judicial system
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Re: America judicial system
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Re: Re: America judicial system
That's enough cyber-Sauroning for now...
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Business as usual
Then, when the big boys actually do something naughty that could kill someone, let them off with a fine and no prison time. Because it's not in the public interest to prosecute a company's executives when e.g. they authorize the off-label marketing to children of a drug approved only for adults.
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Re: Business as usual
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FTFY
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Malk malk malk
Wait...
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Re: Malk malk malk
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And The Band Played on
Andrew Auernheimer, is keeping up his fight for a similarly 'dangerous' bit of hacking criminality of retyping the URL in his browser to access published information.
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notsrs FTFY
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hippies on a witch hunt
Those of you throwing around accusations of a witch hunt appear to having started one yourselves. Your arguments are steeped in flawed logic. Your accusations have about as much merit as the Occupy movement does. If you don't like the system, then change it. But don't be surprised if nobody listens to you because "it's not fair." wah wah wah
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Re: hippies on a witch hunt
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Re: hippies on a witch hunt
Then perhaps you'd actually address what logic is flawed instead of stooping to craven name-calling.
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Re: hippies on a witch hunt
http://blogs.hbr.org/cs/2013/01/aaron_swartzs_crime_and_the_bu.html
Here are two examples of wealthy and powerful people doing things that are obviously more harmful than Swartz getting by without prosecution.
Manning is being over prosecuted rather than being an innocent being harassed in my opinion. Assange owes us nothing, and it is ridiculous that a media outlet is being harassed for publishing something that was leaked. Any time I have ever heard about the relative harms of leaked information, it is always commented upon that, if something shows up in the media, at least it is not sitting quietly in the enemy's hands while we believe it is still a well guarded secret.
So, to sum up, Assange and Swartz innocent, Manning being over prosecuted, and people who are at the controls of the system at its core are let off the hook to go ahead and continue harming their thousands.
And you still won't likely care. Which gets funnier to me the more I distance myself from the outcome. I think it is obvious things are going to crumble and implode. There's still a relatively good chance I die of natural causes first though.
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Re: hippies on a witch hunt
Go ahead. It's publicly available. Make sure it's the superseding indictment.
Aw, hell, here you go, I'll link you to it. http://www.groklaw.net/article.php?story=20130116022816840#Update_4
While reading, keep in mind that the "restricted" network closet was not locked, was publicly accessible, and had no signs that indicated it was restricted.
Let me know if anything you see in that indictment sounds like a basis for making someone a felon.
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Re: hippies on a witch hunt
http://laboratorium.net/archive/2013/01/16/my_career_as_a_bulk_downloader
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How the DoJ regards itself
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Re: How the DoJ regards itself
Consider that Ortiz and Heymann seem to believe that the proper punishment for Mr. Swartz's alleged crimes was a couple months in prison.
Consider that if Mr. Swartz had exercised his right to a trial by jury, the prosecutors would push for several years in prison.
So here we have the prosecutors choosing what sentence they think the crime deserves, and if you don't agree with them, they will instead push for a DIFFERENT sentence which is more than they think your crime deserves. They are punishing the alleged perp for exercising their Constitutional rights.
Truly, when it comes to a plea bargain, the prosecutors are Judge and Jury, deeming you guilty and choosing the sentence for you.
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Curious
http://lessig.tumblr.com/post/40347463044/prosecutor-as-bully
I have to admit that part never gelled in my mind, despite the fact that I do not believe it makes much of an argument for defending the government's behavior in this case.
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It's not about stopping crime, it's about having the leeway to put virtually anyone in prison at a moment's notice.
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Dispense with judges?
That's what plea bargaining does.
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what is your problem ? if this guy in innocent, he would easily be able to prove that to a jury or judge, and get off without any changes.
If you are guilty you might want to take the plea, but if you are truly innocent, you will want your chance in court to make your case and prove your innocence.
Lots of people who are accused of murder are offered a plea they refuse it and are sometimes put in prison for a long time, but sometimes they eventually prove their innocence and get out.
It's only generally if you are guilty, you would take a plea. Everyone knows that, there is nothing wrong with this system, if you want you are welcome to your chance of a court hearing.
Fact is, this person was in fact guilty of the charges against him, he has confessed it in writing, makes it hard to defend because of this.
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And no, people will plea bargain for a number of reasons. Maybe they don't have the money for a protracted defence. Maybe they realise a shorter sentence would lead to them being able to get on with what's left of their life sooner. Maybe they know it'll mean less public attention to what they are accused of.
If you seriously believe *only* the guilty plea bargain, the you've been watching far too much Law and Order, and I would then refer you to the Cardassian court system where only the 'guilty' are 'accused'.
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No. He did take copies of the files so it's impossible to prove he didn't. The fact that what he did was IN NO WAY CRIMINAL doesn't seem to come into the prosecutors mind.
"Lots of people who are accused of murder are offered a plea they refuse it and are sometimes put in prison for a long time, but sometimes they eventually prove their innocence and get out."
So it's OK to abuse these peoples rights because we're abusing these other guys rights? Try again.
"It's only generally if you are guilty, you would take a plea. Everyone knows that, there is nothing wrong with this system, if you want you are welcome to your chance of a court hearing."
No. It's a betting game, one rigged heavily in the prosecutors favour.
Box A contains a small punishment and a plea, box B contains the risk of significant jail time as well as a long drawn-out court case and the fees that incurs.
If the penalty in A is chosen well enough it will always be an appealing option.
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Root Issue
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Re: Root Issue
"Stop Plea Bargains!"
No, seriously. I've been against the plea bargain system for a while now, though it has never worked it way this close to the top of issues I am concerned about before. Times past, I have tended to believe in some vague sense of propriety among folk that would tend to prevent abuses. More and more I am seeing us as a nation seeming to toddle off into the direction of rank immorality and indifference to injustice.
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Aaron Swartz persecution
I disagree; it INCREASES crime. Look at Prohibition; law enforcement has never regained the respect they enjoyed before that.
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