I’m working on a long post on the Aaron Swartz case. It’s a hard post to write – it may never get written – partly because the issues are complicated and partly because of my friendship with, and admiration for, both the defendant and the line prosecutor. (Ironically – tragically – they were much alike in their brilliance, drive, dedication, and unflinching integrity.)
In the meantime, Orin Kerr has an excellent and highly expert run-down of the legal/technical and ethical issues in the case (to which the equally expert James Boyle takes strong exception). [(My answer to Orin’s question about the minimal sentence adequate to ensure that Swartz wouldn’t do it again would have been, as suggested by an RBC commenter, a deferred prosecution agreement.) The main takeaway from Orin’s second post is that what happened to Swartz was pretty much standard-issue federal prosecution: an indictment, a press release using inflammatory language and making empty threats about decades behind bars, and a plea negotiation in which the price of refusing to incriminate oneself is an order-of-magnitude increase in the potential time behind bars.
And that, it seems to me, is the hard ethical question not just in this case but in most cases. If the government was satisfied that six months in prison represented an adequate punishment for Swartz’s offenses, was it really legitimate to threaten six or seven years as the consequence of a guilty verdict rather than a guilty plea? Especially in a case such as this one, where the actual sequence of physical actions was not in doubt, but whether those actions constituted a particular set of crimes was in doubt?
Again, that’s not a question about the ethics of this particular prosecution. It goes much deeper. And it’s not easy to resolve, in a criminal justice system which depends for its functioning on the fact that 95% of cases not dismissed are resolved by plea rather than being tried in court.