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.

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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Comments on “Aaron Swartz's Death Leads To Public Attention Towards Prosecutorial Overreach”

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Kenneth Michaels (profile) says:

Re: 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:


The petition to remove Ortiz already reached the 25k threshold.

Anonymous Coward says:

Re: 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.

shane (profile) says:

Re: 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.

Franklin G Ryzzo (profile) says:

Re: 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.

Anonymous Coward says:

Re: 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.

shane (profile) says:

Re: Re:

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


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.

Digitari says:

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.

Anonymous Coward says:

Re: 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.

Lowestofthekeys (profile) says:

Re: 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.

Anonymous Coward says:

Re: 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.

Anonymous Coward says:

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.

Anonymous Coward says:

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!

Anonymous Coward says:

Re: 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.

Anonymous Coward says:

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?

Anonymous Coward says:

Re: 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.

MED says:


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).

DCX2 says:

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.

frzzl (profile) says:

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

shane (profile) says:

Re: hippies on a witch hunt

People have addressed this accusation repeatedly here. Hopefully you are new and have not noticed, but here.


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.

DCX2 says:

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.

DudeWasHere (profile) says:

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.

DCX2 says:

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.

shane (profile) says:


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


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.

Anonymous Coward says:

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.

Niall (profile) says:

Re: 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’.

Anonymous Coward says:

Re: 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.

shane (profile) says:

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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