Retired Federal Judge Criticizes Carmen Ortiz's Handling Of Aaron Swartz Case
from the good-for-her dept
“Just because you can charge someone with a crime, just because a technical crime has been committed, doesn’t mean you should,” Gertner said.She goes on to criticize Ortiz's continued public claims about how Swartz could get 35 years in jail based on the charges she presented. Gertner notes that, thanks to mandatory sentencing guidelines, judges have less power to push back against overzealous prosecutors like Ortiz, and, as a result, it gives those prosecutors much more power to bully people into agreements.
“At the time of the indictment, [Ortiz] said, ‘Stealing is stealing.’ I saw that all the time when I was on the bench,” she said. “This is a classic line. Stealing an apple if you’re hungry is different than Bernie Madoff. It is obviously different.”
“And in the world of punishment, the prosecutor has enormous power and he has the enormous power to make you plead guilty and give up your rights,” Gertner said.As she notes, since the prosecutor can choose what charges to file against you, and then just pile them all up until you agree to plead to something, the prosecutor often has way too much power:
“So the prosecutor determines the charges and the punishment,” Gertner explained. “Again, once they start the process, once the indictment is brought, the potential for enormous punishment is there and although a judge has some discretion in sentencing, often what the prosecutor wants is what the person gets.On top of that, she points out that there were clearly alternative ways that Ortiz could have handled the Swartz case, either offering a deal that didn't involve prison time or even a diversion program with a suspended sentence (such that charges would be dropped if Swartz stayed out of trouble for a certain set period of time). Instead, she notes that Ortiz chose the hardline path that was designed to "wreck your life" even though it seems clear that merely drawing attention to the belief that his actions were criminal would have likely stopped further such actions.
“When that happens the prosecutor has enormous power and has to exercise that with some degree of fairness and judgment at that end,” she added.
Finally, Gertner points out that part of the problem is that US Prosecutors like Ortiz get rewarded for "high profile" takedowns, and thus all of the incentives she had were to turn the Swartz case into something a lot bigger than it really was:
“If the U.S. attorney is going to take credit for every successful prosecution, not matter what the issues were, the U.S. attorney then winds up as ‘Bostonian of the Year’ for these prosecutions, then you know high-profile prosecutions are valued in the office,” Gertner said. “Mr. Swartz was a high-profile prosecution. Whether they are right is another question.”None of this, of course, is unique to the Swartz prosecution. We've pointed to similar things in the past, and it's unfortunately common today that US Attorneys use their position not to seek justice in the world, but as a political stepping stone to higher office. As such, "high profile" cases where they "put someone away" get them additional attention and acclaim. Being judicious and recognizing when prosecution doesn't make much sense... does not. The incentives are totally screwed up, and that can create calamitous results.