Prosecutorial Discretion, Cambyses and Aaron Swartz
By R Tamara de Silva
January 15, 2013
The Optimist thinks this is the best of all worlds. The pessimist fears it is true
J. Robert Oppenheimer
The prosecutor of the late Aaron Swartz and Sisamnes have something to tell us about the purpose of those who have the awesome task of administering justice. The power of the prosecutor in modern times is absolute and as such unlike in the case of King Cambyses and judge Sisamnes, unchecked when it is abused. All the more reason to ask at these times, what is the purpose of prosecution? Is prosecution in all instances moral? And is prosecution the same as justice? In answer to the latter, in the case of Aaron Swartz, the answer is resoundingly in the negative. The prosecution of Aaron Swartz may have followed the letter of the law and fit an omnibus catchall federal charge like wire-fraud, but it makes mincemeat out of Justice. Aaron Swartz's prosecution also highlights some of the many problems with our criminal justice system.
One of the more memorable stories in the fifth book of Herodotus' Histories takes place in the sixth century BC and it tells the fate of judge Sisamnes. The Persian King Cambyses discovered that Sisamnes had diverted justice and rendered a verdict in a case based upon his acceptance of a bribe. King Cambyses understood the majesty and power of justice and his retribution for Sisamnes' abuse of it is unforgettable in its brutality. King Cambyses had Sisamnes stripped of his flesh, while alive and used the strips of flesh to upholster the court's judge's chair. But Cambyses' retribution for the abuse of justice did not end there for he made Sisamnes' son Otanes sit on the grisly judge's chair as he was made the replacement justice with the lesson that he must always remember his father's fate when administering justice.
There is no King Cambysis to check the power of the Executive Branch's Department of Justice. The criminal law and the office of the prosecutor was originally meant to punish actual wrongdoing that would harm society and in so doing deter conduct, intentionally and severely harmful to civil society- like murder, theft, burglary, treason. The Executive Branch and its Department of Justice is given wide latitude and immunity to bring about justice.
Prosecutors have an immense amount of power-nothing less than the full force and power of the federal government and all its resources. The power of the prosecutor to charge and the power to offer plea bargain sets the course of justice in America. Most people indicted by federal prosecutors are convicted and most take plea bargains. But it is not a fair fight, not even if you can afford the best lawyers money can buy because after all, a federal prosecutor has a theoretically unlimited budget.
Most people who take plea bargains are poor and contrary to what those ignorant of the legal system would more comfortably believe, they are not necessarily guilty. Prosecutors use varying degrees of coercion and intimidation in the process of plea bargains. They can threaten to increase the counts in an indictment, demand higher sentences, or as in the Giuliani's prosecution of Michael Milken, intimidate Milken's 92 year old grandmother, threaten to indict your spouse, keep you locked up before trial, and add obstruction of justice if your defense is anything other than continual and literal silence by invocation of the Fifth Amendment. We have come along way from Torquemada and yet if you look closely enough, not exactly far enough.
Aaron Swartz took his life on Friday January 11, 2013. In the fall of 2011, his lawyer had tried to work out a plea bargain with Assistant United States Attorney Stephen Heymann but was told that Swartz would have to plead guilty to all 13 indictments and would also have to do jail time. On Wednesday January 9, 2013, his lawyer tried again to work out some deal on the eve of trial and as Swartz worried about the costs of his defense and having his friends be made to testify- the prosecutor refused to budge.
Unceremoniously on January 14, 2014, the United States Attorney who had brought charges against Swartz (Case: 11-cr-10260), Carmen M. Ortiz, dismissed them citing his death as the reason for her doing so. Carmen Ortiz had filed a 13 count superceding indictment of Aaron Swartz on September 12, 2012 charging him with wire fraud, computer fraud, theft of information from a computer, recklessly damaging a computer, forfeiture and aiding and abetting.
Aaron Swartz accomplished a lot in 26 years and one gets the impression he would have done a great deal more. He was only 14 when he developed RSS and later co-founded Reddit. He was a powerful force in the fight to keep the Internet free and free of government censorship. In 2008, he wrote a program that extracted twenty percent of the court documents (all public records), on the government's PACER system and put them online so that they would be available to the public for free. His death is a real loss and a sad commentary on overzealous prosecutors who not once considered the importance of their obtaining a win against the value of young Aaron's life and the actual harm he had done.
While the indictment appears facially solid, the charges are less so. The indictment charges theft because it states that Swartz stole, "a major portion of JSTOR's archive of digitized academic journal articles" through MIT's computer network. Yet, Swartz was a fellow at Harvard's Safra Center for Ethics and in this capacity allowed to access MIT's computer network-at least as a guest. If he was allowed to access the network as a guest, then the allegation of computer fraud and theft in using the network become vulnerable. Also, JSTOR had settled with Swartz and did not want any part in prosecuting him criminally especially after they had recovered their files from Swartz. JSTOR has also stated it would not have been a complaining witness in this case.
The government was able to allege wire fraud because JSTOR's computers were not in Massachusetts-this fact is less meaningful considering that JSTOR did not want to prosecute Swartz. Moreover, wire-fraud does not translate well in the age of cloud computing because information does not exist merely within a state line-its locations are generally closely guarded and sometimes outside the jurisdiction of the United States calling into question, which laws even apply.
Prosecutorial Discretion in the Backdrop of Burgeoning Laws
Unfortunately, the practice of administering justice has systemic fragility-at least from the perspective of the Bill of Rights. Lawmakers hurriedly make new laws and federal agencies invent new regulations that taken together give prosecutors more ways to prosecute Americans.
Prosecutors in turn are given an expanding arsenal of tools for use in prosecution on top of their already unfettered and unchecked authority. Some prosecutions are entered into because they are high profile. Many prosecutors like Giuliani and Spitzer used high profile cases as stepping-stones for their political ambitions. Congress and many states, cave to political and media pressures to "do something" about virtually any adverse event, and in the process invent new criminal statutes and environmental regulations at a relatively breakneck speed. This of course results not just in a stunning enlargement of the government's power over the individual (there is no commensurate enlargement in a person's Constitutional rights), but a dilution of Federal power to enforce important criminal laws. Another consequence is the invitation to abuse the power of the prosecutor to select which criminal statutes to enforce and on whom to enforce them. The power of the prosecutor in America has never been greater than it is today because of the greater resources of the federal government and the sheer volume of criminal statutes and criminal offenses, which is greater than it has ever been.
In an actual case, I came across a multi-state drug dealer, who had been well represented by an experienced defense lawyer and who had trafficked in kilograms of cocaine never even got indicted. He walks free without being indicted because a prosecutor allowed him to escape decades of federal jail time in exchange for ratting out his co-conspirators. He even went on to be awarded multi-million dollar contracts with the City of Chicago. Arguably, it is alright that the drug dealer walks away free because the government was able to prosecute at least two of his colleagues.
A crime is a crime is a crime-or as Carmen Ortiz was once said about her indictment of Swartz, "Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars...It is equally harmful to the victim whether you sell what you have stolen or give it away." Or is it?
When a drug dealer peddles pounds of cocaine from New York to Chicago and never gets indicted, can anyone argue that no one was harmed? By contrast, who was actually harmed in the case of Aaron Swartz? Why was it so much more important to make him a felon and place him in jail for 35 years?
What content from JSTOR did Aaron Swartz give away for free much less sell?
All guarantees of individual liberty and freedom protected by the United States Constitution under due process, equal protection and the presumption of innocence have remained as they were written by the Constitution's drafters in the first fourteen amendments, yet the reasons the Government may use to exercise it power to deprive its citizens of their liberty have grown several hundred thousand fold. This would be as if instead of every side getting one chance at bat in a baseball game, one team would get ten thousand chances at bat for every single time the other team went to bat.
The Government has hundreds of thousands of ways to deprive an American of his life and liberty, and yet the number of amendments protecting your civil liberty have remained the same.
If you think that following the law is simple and you will never run afoul of it and all this I write is pablum, you do not know the law. Keep in mind that federal law touches upon every facet of an American's everyday life. All Americans engage in conduct, which falls under the penumbra of use of the United States wire or mails. Americans are regulated by a myriad of laws, at times obscure, and yet their ignorance of them offers no protection.
The federal government spends billions of dollars on prosecutions based upon theories of strict liability for obscure crimes honored more in their breach than by their rule because the crimes lack definition. There are many examples of obscure but actual and costly prosecutions based upon relatively new criminal statutes: Prosecution of four men for bringing lobsters back that were not packed properly according to a foreign law (Lacey Act); prosecution of handicapped elderly woman who had not trimmed her garden hedges that abutted a side street to the required level of under two feet; criminal prosecutions of manufacturing companies for not being able to label their products for uses, wholly unintended by the manufacturer and not capable of being foreseen; growing orchids according to laws of another country (Lacey Act); registering under false name on Facebook or Myspace; filling out any federal form and making a mistake; running out of gas in a blizzard and abandoning your snowmobile, the list of actual prosecutions is much longer.
To put this in perspective, in 1790 there were about 6 crimes in America, treason, piracy, murder, maiming, robbery and counterfeiting. In 2011, there were over 4,500 Federal crimes and hundreds of thousands of regulations whose breach would incur criminal penalties. Congress invents a new crime on average every week for every week of the year. Congress is not however, simultaneously repealing existing bad, redundant or conflicting criminal laws. Basic crimes like murder, robbery and theft are regurgitated into new forms, but what is far more worrisome than the explosion of Federal legislation, whose reach touches every aspect of everyday life, is the invention of crimes lacking any wrongful intent-this phenomenon is called, overcriminalization.
There are steep economic costs in overcriminalization but the injustice of criminalizing and prosecuting innocuous conduct is far more disconcerting. This said, the economic costs are staggeringly immense in terms of the growth in the Federal prison population and the tens of millions of dollars per case for the cost of high profile prosecutions based upon amorphous statutes, as in the trial of a Martha Stewart, Roger Clemens or even a Lord Conrad Black.
There is a culture of prosecution that regards conviction as a benchmark for success to be rewarded with re-election and advancement, even to the Judiciary. Along with plea-bargainning (something never envisioned by the Constitution's drafters) we seem to be more concerned with securing convictions than making sure the actual guilty are punished and that the innocent and disenfranchised are never placed behind bars in an already over-crowded and expanding prison population.
Prosecutors often play to the media and the media affects high profile cases to the point of driving prosecutions and hastening indictments-making a circus side-show of the justice system. If they get it wrong and destroy lives in the process, as so often happens in the prosecution of vague statutes, prosecutors are never held accountable because of absolute and qualified immunity. There is effectively no check or balance on the powers of the prosecution.
Things like the presumption of innocence are tossed aside for ratings or marketing for prosecutors with political ambitions. Very much akin to the idea that there is no such thing as a bad arrest or a bad conviction, the culture of prosecution measures success by the number of convictions-it is very much a numbers game-unless of course a very high profile defendant comes along. What suffers in all of this the equal administration of justice. And let us make no mistake about it Aaron Swartz was a high profile defendant.
Another contrast to Aaron Swartz's prosecution within the same year is a notable non-prosecution and also of an high profile figure- Jon Corzine. Corzine engineered the eighth largest bankruptcy in United States history and caused over $1.2 billion in customer funds to go missing when MF Global was supposed to keep their customer funds safeguarded, segregated and not touch them. Mr. Corzine, like the drug dealer, was never indicted and never will be. He did not fight against government censorship or control of the Internet, he was not unlike Swartz determined to change the world-he was one of the largest campaign donors to a sitting President and a close friend of the Chairman of the SEC.
At the same time that the Department of Justice began its indictment of Aaron Swartz, it announced it would not prosecute Jon Corzine. You must also keep in mind that prosecutorial discretion is not always discrete.@
R. Tamara de Silva
January 15, 2013
 It is the coolest of ironies that Spitzer was indicted because he asked a bank teller not to put his name on a wire transfer (a request that would have meant violating anti-money laundering laws)-the same action he had prosecuted so many people of doing.
 From 2000 through 2007, Congress enacted 452 new criminal offenses. http://www.heritage.org/Research/Factsheets/2011/04/OVERCRIMINALIZATION-An-Explosion-of-Federal-Criminal-Law