Aaron Swartz's Death Leads To Public Attention Towards Prosecutorial Overreach

from the about-time dept

Tue, Jan 22nd 2013 11:39am — Mike Masnick

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.

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).

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:

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.

"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."

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:

...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

87 Comments

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Irving, 22 Jan 2013 @ 11:46am

If we see manslaughter charges emerge from this, perhaps government agents will think twice before embarking on a crusade...
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Anonymous Coward, 22 Jan 2013 @ 11:49am

Milk, milk, milk, milk, milk. Wow. No shame whatsoever.
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dennis deems (profile), 22 Jan 2013 @ 11:52am

Re:
Lemonade?
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Matt (profile), 22 Jan 2013 @ 11:52am

Part of the problem is, for every person concerned about prosecutorial overreach, there's three people ready to howl their guts out if an alleged criminal receives what they perceive to be a too-light sentence. No one ever won an election by being the "soft on crime" candidate.
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Digitari, 22 Jan 2013 @ 11:54am

Re: Justice in America
"This kind of prosecutorial overreach impacts everyone in serious ways, generating lots of headlines, but doing little to nothing to actually help stop crime."

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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Lowestofthekeys (profile), 22 Jan 2013 @ 11:54am

AJ overload in 5..4..3..2..1
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weneedhelp (profile), 22 Jan 2013 @ 11:56am

Re:
"No shame whatsoever." - I was thinking the same exact thing about you.
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Anonymous Coward, 22 Jan 2013 @ 11:58am

Re:
As if you know what shame is.
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Lowestofthekeys (profile), 22 Jan 2013 @ 12:00pm

Re: Re:
Around the corner fudge is made?

Mmm, the AC is right, I do feel ashamed .
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Anonymous Coward, 22 Jan 2013 @ 12:03pm

Impacting Everyone
Everyone that is except those with the power and influence (ie money and connections to government) to stop it. When you can have your lawyer simply call up a government official and remind him how much you contributed to his election campaign last year so that he will "do you a favor" by talking to the prosecutor in the case, prosecutorial overreach doesn't really have as much impact on your life.
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Anonymous Coward, 22 Jan 2013 @ 12:03pm

Re:
I would put it in different words, but the sentiment would be the same. One thing I have noted throughout the litany of articles and comments is that a person in MA was being represented by a well-respected and experienced criminal defense lawyer from CA (SF to be precise. It is more than a bit difficult to bully a defendant under such circumstances. Moreover, all the "he was being bullied" statements associated with the interactions of the prosecution and defense attorneys seem to be coming from the defense attorney, a longstanding practice of attempting to try a case in the court of public opinion, and not before a court of law. There are many tactical reasons for doing so, not the least of which is to later argue that the attendant publicity has so tainted the jury pool that the case must be moved and tried in another venue.
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Anonymous Coward, 22 Jan 2013 @ 12:05pm

Re:
No matter how you may have put it, it is getting a bit tedious that commenters on this site are able to censor comments by placing them behind a "link". Sure, you can click the link, but why even have it in the first place?
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Anonymous Coward, 22 Jan 2013 @ 12:07pm

i bet nothing will change, well, not for the better, anyway. Ortiz is spouting how she will continue in the same vane because she did nothing wrong. and the sentence did not depend on what plea bargain was agreed, it depended on what the judge decided to dish out and we all can have a good guess at that being as severe as possible! what a shame that her son or daughter (if she has either) cant be in the same position. bet there would be a change of mind then! and does anyone actually think that the DoJ is going to allow itself to be investigated? they are a law unto themselves! they ignored senators calls for documents last year which tells me that they fear no one and will ignore again!
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Anonymous Coward, 22 Jan 2013 @ 12:08pm

Re: Re:
Almost as tedious as the repeated trolling of a useless scumbag.
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ChurchHatesTucker (profile), 22 Jan 2013 @ 12:11pm

Karma
Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz's death, she should not be regarded as an anomaly.

But she should be made an example of. It seems only fitting.
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shane (profile), 22 Jan 2013 @ 12:14pm

Real Issues
I like this post because it strikes at the heart of all of the real issues that I come to Tech Dirt to keep abreast. From the moment I stumbled across this place, I recognized that its message fits neatly into a broader message of abuse of power and broadening responsibility within government.
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Anonymous Coward, 22 Jan 2013 @ 12:15pm

Re:
Funny, last I checked, legitimate questions are being asked.

Remember The Movement? Was that milked for all it was worth as well, in your eyes?
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jupiterkansas (profile), 22 Jan 2013 @ 12:16pm

Re:
What's changed is that there's now a whole community of people that know about this and see how bad it is. What effect that change has remains to be seen, but it's another straw on the camel's back.
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shane (profile), 22 Jan 2013 @ 12:18pm

Re: Re:
Most blogs simply remove the comments. Red State, where I used to comment regularly until I made the mistake of objecting to their focus on holding the line on taxes, will simply disable your ability to comment at all.

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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Anonymous Coward, 22 Jan 2013 @ 12:19pm

Re:
Looks like you were a bit late. AJ has already left his mark. [See moderated Comment 2 for that.]

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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Lowestofthekeys (profile), 22 Jan 2013 @ 12:19pm

Re: Re:
Maybe it's schadenfreude talking, but I rather enjoy un-hiding the comment to see what kind of ranting assholery is going on behind it.

If anything, there's a good chance people don't even ignore reported comments.
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Anonymous Coward, 22 Jan 2013 @ 12:19pm

what is a shame is that there is no mention of what the main reason for this case was, and that was copyright! can no one else see what the entertainment industries started by getting laws changed, laws introduced, civil cases being rebranded as criminal cases, the way that videos are taken down, (when they shouldn't be, all on false claims that carry no punishment!), sites closed under similar claims and a hundred other ways they have used to just get protection for movies and music, for files of data? how can anyone, for even a second, think that these files are more important than peoples lives?
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Anonymous Coward, 22 Jan 2013 @ 12:19pm

Re: Re:
Actually, I think that just makes those comments more noticable. I always click on then because I am curious.
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Kenneth Michaels, 22 Jan 2013 @ 12:19pm

Petition to Fire U.S. Attorney Steve Heymann
The petition to remove Steve Heymann still needs 15k signatures (the older 25k signature threshold applies to this petition). Please sign the petition here:

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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MED, 22 Jan 2013 @ 12:21pm

Huh?
Of course he was being bullied. Plead guilty and take 6 months, or insist on your right to trial and we pile on additional charges and seek a maximum sentence of 50 years.

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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Lowestofthekeys (profile), 22 Jan 2013 @ 12:23pm

Re: Re:
I'm skeptical to a degree about the Milk AC being AJ, mainly because I went through this blog post - https://www.techdirt.com/articles/20130118/20070421737/week-later-reflecting-aaron-swartz.shtml. The AC spouting the milk nonsense has a deep red icon while the one I believe to be AJ has a blue one, but hell, they're both ACs so who knows.
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shane (profile), 22 Jan 2013 @ 12:24pm

Re:
But the kinds of criminals people usually complain about are murderers. Also, massive white collar crime is constantly overlooked as noted here.

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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Anonymous Coward, 22 Jan 2013 @ 12:28pm

Re: Re:
Except there is one problem with your argument here. The statements made by the defense attorneys and the public outrage concerning prosecutorial overreach all came AFTER his death and winning the case for the defense was a moot point.
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Anonymous Coward, 22 Jan 2013 @ 12:30pm

Re:
Copyright is not a part of any offense in the grand jury indictment, so the statement that it is the main reason is not borne out by the facts.
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Anonymous Coward, 22 Jan 2013 @ 12:33pm

And people wonder why America's prison population has gone up over 700% in the last 4 decades.
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Anonymous Coward, 22 Jan 2013 @ 12:34pm

Re: Re:
The reason it is there is so that trolls who simply flood the page with comment after comment of nothing but worthless dribble are not allowed to damage the ability for others to follow the thread. If you will notice it is not used by the readers in the manner that you suggest. Arguments that simply come from a different perspective are not generally reported. Only worthless hate spew gets hidden.
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Anonymous Coward, 22 Jan 2013 @ 12:36pm

Re: Re: Re:
A fair point I had not considered. Whether or not he made comments about the case prior to this tragedy is unknown to me.
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Anonymous Coward, 22 Jan 2013 @ 12:41pm

Re:
I actually rather enjoyed the discussion with him over the last few days, if we can just potty train him to leave the trollish attacks in his comments outside in the yard like a good puppy...
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Killer_Tofu (profile), 22 Jan 2013 @ 12:46pm

Well, they got their names in the papers alright. And I hope it is for every single reason they hoped it wouldn't be. So far it seems to be going that way.
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Anonymous Coward, 22 Jan 2013 @ 12:53pm

Re:
That will come later as the scope expands to criticism of proscutorial overreach in the entire DOJ and other cases that have a more direct relation to copyright get brought under scrutiny, such as the MegaUpload case for instance. But for now it's narrowly focused on Ortiz and this case. And since copyright infringement wasn't named in the indictment, it's probably best to leave that out of the criticism as it opens the door for the prosecution to claim that the entire backlash is about defending piracy which is silly but some of the public might buy it.
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peter baker, 22 Jan 2013 @ 12:53pm

America judicial system
The question is not whether you are guilty or innocent of something (anything), the question is that when the Eye of Sauron gazes in your direction, whether you have enough money to mount a defence.
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peter baker, 22 Jan 2013 @ 12:53pm

America judicial system
The question is not whether you are guilty or innocent of something (anything), the question is that when the Eye of Sauron gazes in your direction, whether you have enough money to mount a defence.
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peter baker, 22 Jan 2013 @ 12:53pm

America judicial system
The question is not whether you are guilty or innocent of something (anything), the question is that when the Eye of Sauron gazes in your direction, whether you have enough money to mount a defence.
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DCX2, 22 Jan 2013 @ 12:54pm

Business as usual
Step on the little guys who can't fight back without going bankrupt. Crush them under your feet and then brandish their flatness as credentials for being "tough on crime" despite the "crime" being victimless.

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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Josh in CharlotteNC (profile), 22 Jan 2013 @ 12:56pm

Re: Re: Re: Re:
Lessig's comment about the inability to draw attention to the defense fund make sense now, eh?
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peter, 22 Jan 2013 @ 12:56pm

Re: America judicial system
Oops. sorry about repost. Computer is playing up
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Trails (profile), 22 Jan 2013 @ 12:57pm

Malk malk malk
This is clearly just the Wall Street Journal exploiting this tragic and senseless suicide of a vicious and horrible criminal (I mean he changed HIS MAC ADDRESS PEOPLE!!!! WHAT MORE PROOF DO YOU NEED???) pushing their copyleft agenda.

Wait...
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Anonymous Coward, 22 Jan 2013 @ 12:58pm

Re:
Ortiz is spouting how she will continue in the same vane because she did nothing wrong. and the sentence did not depend on what plea bargain was agreed, it depended on what the judge decided to dish out

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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Blatant Coward (profile), 22 Jan 2013 @ 12:58pm

And The Band Played on
http://techcrunch.com/2013/01/21/ipad-hack-statement-of-responsibility/

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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Anonymous Coward, 22 Jan 2013 @ 1:05pm

Re: Re:
Correct. Just as what happened with SOPA. It was considered a slam dunk until there was such an outcry that even the mainstream media had to pick it up to some extent despite their efforts to ignore it. This is just beginning.
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Anonymous Coward, 22 Jan 2013 @ 1:08pm

Re: Re:
Let me be the first to try to put you behind a link.
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Anonymous Coward, 22 Jan 2013 @ 1:19pm

Re: Re: Re:
Actually, I was in that thread too and if you pay attention, the Milk AC and the other AC are both AJ, despite the different colored snowflakes. If you completely go through the comments, you'll see that the Milk AJ is pointing out consistently that Mike is just using this to "further his agenda" and then if you read on you'll see that the "further his agenda" becomes "open and honest" (which is classic AJ) and eventually, once Mike joins in and once he's been called out as being who he is THAT AC is confirmed as being AJ. There was another AC coming in and backing up AJ to a degree, but the writing style was different.

I'm again relatively comfortable saying that this AC is AJ yet again. Not signing in, as usual.
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jupiterkansas (profile), 22 Jan 2013 @ 1:22pm

Re: Re:
She has admitted that the entire Department of Justice operates as a lying bully, and what she did was standard procedure.
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jupiterkansas (profile), 22 Jan 2013 @ 1:25pm

Re: Business as usual
yeah, well the big boys can actually pay the fines. Money is money.
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Franklin G Ryzzo (profile), 22 Jan 2013 @ 1:30pm

Re: Re: Re:
And beyond that, the moderation is community driven and not done at the whim of administrators. My understanding is that once a comment gets enough votes it becomes funny, insightful, or reported unlike other comment sections where the moderators or authors blatantly censor what they don't want to see. We as a community at techdirt decide when something should removed and then it's still just a click away.
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A Monkey with Attitude, 22 Jan 2013 @ 1:38pm

Re: Re: Re:
Maybe, maybe not... Its up to all of us to make sure this type of movement doesnt go away when the next "big" scandal comes up.

We must not let this go!
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Anonymous Coward, 22 Jan 2013 @ 1:54pm

Re: Re: Re: Re:
Agreed. This is far too important.
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Anonymous Coward, 22 Jan 2013 @ 1:58pm

Re: Re: Business as usual
"yeah, well the big boys can actually make campaign contributions. Money is money."

FTFY
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Anonymous Coward, 22 Jan 2013 @ 2:07pm

Re: Re: Re:
Now I understand why the CFAA has such draconian penalties, if facilitates the bullying approach, with no need to prove that an actual crime has been committed, just force a plae bargain for a short sentence, Maybe a bit longer than promised if you have annoyed the government.
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shane (profile), 22 Jan 2013 @ 2:07pm

Re: Re: Re: Re:
Hehehehe. More like a "censure" than a "censor". =)
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Anonymous Coward, 22 Jan 2013 @ 2:08pm

lol If they wanted to "better this world" why are they not giving free downloads for it. Oh well off to TPB I go. I would buy a copy but I'm broke.
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Anonymous Coward, 22 Jan 2013 @ 2:11pm

Re: Re: Re:
It doesn't seem to me to make them more noticeable but I almost always click them too to see what was said - especially if they have a litany of great responses following them that put the troll in his place.

But I do think it helps discourage flooding though.
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Anonymous Coward, 22 Jan 2013 @ 2:11pm

Re: Re:
Rob the public of at least 12 countries with fraud? Fines and multi-million "golden parachutes".

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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Anonymous Coward, 22 Jan 2013 @ 2:14pm

Re:
I would steal a copy but I'm broke.

notsrs FTFY
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frzzl (profile), 22 Jan 2013 @ 2:45pm

hippies on a witch hunt
Have any of you hippies stopped to consider that there may be more this case than your silly conspiracies? Maybe there are reasons why they decided to pursue this individual as aggressively as they did, for reasons yet known. This underachievers cries wolf when the likes of people such as Bradley Manning and Julian Assange get their asses handed to them for stuff they really should not have been doing. They're not heroes, nor are they civil rights figures. I wonder how many of you have, or will get involved on future legal cases involving so-called prosecutorial overreach that span beyond the 2.0 domain.

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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Anonymous Coward, 22 Jan 2013 @ 2:48pm

Nobody expects the US inquisition.
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Anonymous Coward, 22 Jan 2013 @ 3:18pm

Re: hippies on a witch hunt
If the reasons are have not been made public the prosecutor was engaged in a witch hunt. Secret charges cripple the defence.
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John Fenderson (profile), 22 Jan 2013 @ 3:23pm

Re: hippies on a witch hunt
Your arguments are steeped in flawed logic.

Then perhaps you'd actually address what logic is flawed instead of stooping to craven name-calling.
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Anonymous Coward, 22 Jan 2013 @ 3:46pm

Re: Re:
...if we can just potty train him...

Please do so head first.
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shane (profile), 22 Jan 2013 @ 3:58pm

Re: hippies on a witch hunt
People have addressed this accusation repeatedly here. Hopefully you are new and have not noticed, but here.

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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Anonymous Coward, 22 Jan 2013 @ 4:06pm

How the DoJ regards itself
Judge, Jury, and Executioner
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DCX2, 22 Jan 2013 @ 4:32pm

Re: hippies on a witch hunt
No conspiracy theory needed. Go read the indictment.

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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DCX2, 22 Jan 2013 @ 4:36pm

Re: How the DoJ regards itself
You're not far off the mark.

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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Anonymous Coward, 22 Jan 2013 @ 5:25pm

Funny how they claim to only be doing their jobs, but I do not see any bankers in jail. There are all sorts of excuses for this, none of them have anything to do with doing their job.
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shane (profile), 22 Jan 2013 @ 5:34pm

Curious
Did anyone ever expound on exactly what Lessig meant about Aaron not being able to openly call for financial help for his defense?

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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Rekrul, 22 Jan 2013 @ 9:54pm

This kind of prosecutorial overreach impacts everyone in serious ways, generating lots of headlines, but doing little to nothing to actually help stop crime.

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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k-h, 23 Jan 2013 @ 12:28am

Dispense with judges?
>one wonders why we can't also dispense with judges.

That's what plea bargaining does.
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Ninja (profile), 23 Jan 2013 @ 2:41am

Awareness is power. If this keeps up the current momentum we can expect change. Nothing like public outrage to make politicians move their arses.
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Anonymous Coward, 23 Jan 2013 @ 4:20am

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.

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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Niall (profile), 23 Jan 2013 @ 4:53am

Re: Re: America judicial system
DELETE!...DELETE!...DEL... ok, let's leave one there.

That's enough cyber-Sauroning for now...
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Niall (profile), 23 Jan 2013 @ 5:02am

Re:
He admitted guilt in doing what he did. NOT to the absurd witches' brew of fake felonies that he was being accused of. Also, the people he had supposedly offended against didn't want him prosecuted, so were hardly treating it as a crime, let alone such a serious one.

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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Anonymous Coward, 23 Jan 2013 @ 5:42am

Re:
"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."

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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Anonymous Coward, 23 Jan 2013 @ 6:01am

Re: Petition to Fire U.S. Attorney Steve Heymann
They both have my sig! Both of those scumbags should be jailed. They tried to do the same to that one lady that was the myspace bully. They pretty much did the same thing to Aaron.

I spit in that bitches face... She makes me sick!
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DudeWasHere (profile), 23 Jan 2013 @ 6:05am

Re: hippies on a witch hunt
I have to go with the hippies on this one. Publicly accessible locker on campus with no lock, and in some reports someone else was using it for personal storage. Network with NO restrictions, plug in and go. Aaron had a legitimate account to access JSTOR which "owned" or at least stored the public materials. JSTOR actually dropped all charges. The material was actually public domain unless someone else can correct me, except that JSTOR wanted to charge for downloading the content. My understanding is that MIT users had unlimited access which was why the laptop was on MIT's campus. Outside users could officially download up to 3 free articles. Definitely sounds like overreach to me. Like there was not some drug dealer, murderer, or other scum that could have been given more attention. I think in this case, the witch hunt was held by prosecutor in this case.
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dataGuy (profile), 23 Jan 2013 @ 6:33am

Root Issue
I haven't heard many people suggest outlawing plea bargains. I'm not an expert in this area but it is my understanding that many countries have done just that; as they understand the corrosive effects of the whole bargaining process.
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Anonymous Coward, 23 Jan 2013 @ 7:41am

Re: hippies on a witch hunt
Please learn the meaning of the word "conspiracy" before the next time you use it.
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shane (profile), 23 Jan 2013 @ 7:42am

Re: hippies on a witch hunt
Not to mention people who regularly have to do what Swartz wanted to do in the course of research do this with growing regularity anyhow.

http://laboratorium.net/archive/2013/01/16/my_career_as_a_bulk_downloader
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shane (profile), 23 Jan 2013 @ 7:45am

Re: Root Issue
I'm pretty sure I have. If not, I'll call now.

"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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Anonymous Coward, 23 Jan 2013 @ 8:52am

Re: Malk malk malk
sarc? Well done, I almost fell for this.
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Jeremy Lyman (profile), 23 Jan 2013 @ 8:56am

Re: Re: Re:
I imagine that pink text is a door with the words "Warning! Idiot within" written on it. I usually walk right past, but sometimes I'm in the mood to see what's going on in Idiot-land so I peak in. It's handy for when I have to recalibrate my craze-o-meter.
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jupiterkansas (profile), 23 Jan 2013 @ 10:08am

Re: Re: Re: Re:
Exactly. Very few people actually serve full sentences.

And very few (2% I think) ever see a jury.
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Gene Cavanaugh (profile), 23 Jan 2013 @ 11:32am

Aaron Swartz persecution
You said: "This kind of prosecutorial overreach impacts everyone in serious ways, generating lots of headlines, but doing little to nothing to actually help stop crime.".

I disagree; it INCREASES crime. Look at Prohibition; law enforcement has never regained the respect they enjoyed before that.
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