Orin Kerr has a typically thoughtful two-part series on the Swartz prosecution. The first part confirms what I assumed to be true — the charges were plausible under the letter of the law. The second — which is essentially a defense of Ortiz that is sympathetic to Swartz’s dilemma — is very much worth reading but more problematic. I certainly agree with Kerr that the central problem is that “[f]elony liability under the statute is triggered much too easily.” A too-broad statute, to borrow Robert Jackson’s phrase, “lies about like a loaded weapon,” and if it wasn’t Ortiz and Swartz another prosecutor was going to bring excessively harsh charges eventually. The key to his defense of Ortiz, though — “[w]hat the prosecutors did here was what federal prosecutors often do” — is less convincing. Not because it isn’t true, but because it comes too close to being a “no justice for x until justice for y (and hence no justice for anyone)” argument. The fact that overcharging for nonviolent offenses to coerce plea deals is common doesn’t make it appropriate, and any high-profile case in which it happens merits criticism. It would be best if the discretion of prosecutors was substantially reduced — Radley Balko is good on this — but given the reliance of the system on prosecutorial discretion criticism of common abuses is appropriate.
Even more problematically, there’s the question of priorities, which Kerr doesn’t address at all. Kerr accepts that “special deterrence” was required for Swartz’s “anti-democratic” actions. The problem here is that we have recent examples — financial fraud, torture — in which the federal government has used its discretion not to bring criminal charges in cases of people seeking to “anti-democratically” undermine public policy in ways that caused far, far more harm than Swartz. Yes, lest I be accused of contradicting myself the fact that the federal government decided to let class of serious potential criminals x and y get off scot free doesn’t in itself mean that they can’t pursue the much less severe alleged criminality of z. But particularly given the extent to which Kerr’s defense requires on Swartz meriting “special deterrence,” the more cautious treatment of much more serious crimes is highly relevant. Of all the illegal behavior that undermines public policy the state might go after, I’d have to say that “undermining firewalls that obstruct access to obscure academic articles the authors weren’t compensated for” would have to rank pretty close to the bottom. Hence, I don’t find the case that “special deterrence” was required in this case very convincing.
The fact that both one of the alleged victimized parties and the local authorities also didn’t think that “special deterrence” was required also seems relevant:
State prosecutors who investigated the late Aaron Swartz had planned to let him off with a stern warning, but federal prosecutor Carmen Ortiz took over and chose to make an example of the Internet activist, according to a report in Massachusetts Lawyers Weekly.
Middlesex County’s district attorney had planned no jail time, “with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner,” the report (alternate link) said. “Tragedy intervened when Ortiz’s office took over the case to send ‘a message.’”
The evaluation made by J-STOR and the local authorities seems, ultimately, quite a bit more persuasive to me than Kerr’s.
Meanwhile, conservative who is…less thoughtful Ann Althouse has some very tasteful comedy stylings to share on this subject:
Is the prosecutor getting bullied? If she were to commit suicide — Swartz-style — would everyone feel ashamed of what they did to her?
Haw-haw-haw! It’s funny because state coercion is just the same as criticizing someone on the internet! And the idea that public officials with substantial discretion over that coercive apparatus should be subject to some measure of public scrutiny, what are you, some kind of free-thinking anarchist?