systemic injustice of the U.S. criminal justice system

Aaron Swartz courageously worked for the public interest on the Internet.  His family and partner have without exaggeration described Swartz’s contribution:

Aaron’s commitment to social justice was profound, and defined his life. He was instrumental to the defeat of an Internet censorship bill; he fought for a more democratic, open, and accountable political system; and he helped to create, build, and preserve a dizzying range of scholarly projects that extended the scope and accessibility of human knowledge. He used his prodigious skills as a programmer and technologist not to enrich himself but to make the Internet and the world a fairer, better place. His deeply humane writing touched minds and hearts across generations and continents. He earned the friendship of thousands and the respect and support of millions more.

On January 11, 2013, Aaron Swartz committed suicide.  Out of respect for his work and his memory, please watch the above video.  In it, Swartz describes how mass democratic action stopped a serious threat to civil liberties in the U.S.

Aaron Swartz committed suicide amidst stressful, highly threatening persecution from the U.S. criminal justice system.  Almost exactly two years before he committed suicide, Swartz was arrested for an act of civil disobedience.  Using technological means well-known to computer experts, he downloaded millions of scholarly articles from the JSTOR database.  JSTOR’s capture and sale of scholarly articles reflects a general, continuing practice that needs critical public scrutiny in the Internet era.  Swartz did not distribute the JSTOR articles online.  JSTOR did not seek the prosecution of Swartz.  Nonetheless, the office of U.S. Attorney Carmen Ortiz went forward with a crushing criminal indictment of Swartz.  A U.S. Department of Justice press release proclaimed:

AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

To put more pressure on Swartz, the Department of Justice in September, 2012, secured a new indictment that increased the number of felony counts against Swartz from four to fourteen.  The U.S. Attorney apparently wanted Swartz to plead guilty to some felony and accept a six-month prison term.  The case record makes clear that Swartz was mired in an expensive, time-consuming, highly threatening federal prosecution.  Those circumstances are reasonably understood as contributing significantly to Swartz’s suicide.[1]  The prosecution of Swartz seems to me to indicate extraordinarily poor prosecutorial judgment.

The persecution of Swartz was, however, business as usual in prosecuting persons in the U.S. criminal justice system.  U.S. Attorney Carmen Ortiz declared, “this office’s conduct was appropriate in bringing and handling this case.”  U.S. prosecutors typically get a rubber-stamp grand jury indictment of a person on a variety of charges.  The threat of those charges typically induces the person to accept a plea for whatever punishment the prosecutor thinks is appropriate.  The whole U.S. constitutional apparatus of due process is irrelevant to the pervasive practice of plea bargaining.  The U.S. criminal justice system is a bargaining game in which prosecutors have enormous discretionary power.  The time, expense, and uncertainty of a criminal trial can prompt innocent defendants to plead guilty to “lesser” charges.

U.S. criminal law places virtually no constraint on the maximum possible criminal punishment.  In the Swartz case, the U.S. Attorney declared, “At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.”  At first the U.S. Attorney brought against Swartz four felony counts, with a punishment of “up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.”  Apparently to get more bargaining power, the U.S. Attorney subsequently brought an additional nine felony counts against Swartz. In areas such as computer fraud and wire fraud, anyone is vulnerable to a huge number of felony counts on criminal laws that are vague, technologically anachronistic, and closely related to common, everyday actions. If doing so would have increased her bargaining power with Swartz, the U.S. Attorney probably could have brought against Swartz hundreds of felony counts with punishments of up to 1000s of years in prison.

In the U.S. criminal justice system, criminal charges are merely tools for prosecutors to seek their desired punishment of the accused.  A maximum penalty under the law doesn’t exist in practice.  Most criminal cases aren’t resolved “under the law.”  The prosecutor judges how much to seek to punish someone and then does whatever is necessary to get that punishment.[2]  That’s how the U.S. criminal injustice system works.  It needs fundamental reform.

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Read more:

• the U.S. criminal justice system compares badly to “kadi justice”
• the collapse of the U.S. criminal justice system
• copyright absent in vibrant ancient Islamic world of book authorship

Notes:

[1] Following Swartz’s suicide, his family and friends declared:

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.

MIT’s lack of support for Swartz jarringly contrasts with its wide-open network and its support for new Internet applications.  Describing the U.S. criminal justice system as “rife with intimidation and prosecutorial overreach” seems to me to be no exaggeration.  Max Kennerly has written excellent posts, with many links to relevant discussion, describing the indictment and the stress it created for Swartz.

[2] A leading scholar of criminal law and the criminal justice system has written:

The bodies of law, state and federal, that claim to define crimes and sentences do not really do what they claim. Instead, those bodies of law define a menu – a set of options law enforcers may exercise, or a list of threats prosecutors may use to induce the plea bargains they want. The menu says little about what options are exercised or what threats are used. The real law of crimes and sentences is the sum of those prosecutorial choices.

See William Stuntz, “Plea Bargaining and Criminal Law’s Disappearing Shadow,” Harvard Law Review, v. 117, no. 8 (Jun. 2004) p. 2569.