Aaron Swartz and plea bargaining

Should pleading “not guilty” mean years, instead of months, behind bars?

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.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

73 thoughts on “Aaron Swartz and plea bargaining”

  1. I think it is an easy question to resolve on a moral level; the answer is “no.” The fact that it’s difficult on a practical level, because 95% of our cases are resolved by plea, simply underscores that we are trying to prosecute too much behavior. The Computer Fraud and Abuse Act, the drug laws — there are dozens of examples of flawed laws that simply shouldn’t be on the books in their present forms. Or, if we really think these “crimes” are worth prosecuting, we ought to be funding more prosecutors and more courts.

    1. Agree, there is something fundamentally rotten about the way our system relies on plea bargaining. And yes, it is difficult to resolve if the system depends on it, in the same way it is difficult to get rid of slavery if your economy depends on slave labor. Maybe this case can help people realize the awfulness of this system.

      But I suspect not much will change. One of the side effects of such a system, where prosecutors use limited resources as poker chips to extract the highest number of convictions and time behind bars from defendants, is that the optimal strategy is to offer better deals to wealthier defendants who can fight back, and use the resources saved to tack a few more years or decades onto some poor sucker’s sentence. Which for many people is a feature, not a bug.

  2. Given the way the system is set up, there is not much one can do to improve it, apart from blowing it up. That’s tempting, but I’ve always been taught that Very Serious People only searche global, rather than local minima.

    But I do think that there is one local minimum that is unexplored. The Brits have been using it for awhile. All you have to do is let the DA’s office play both sides of the house: defense and prosecution. There is no ethical problem if structured correctly, and defendants can always hire outside counsel. (So, I suppose, could the state, if the defendant exercises the option.) The key here is that individual attorneys would be playing both sides of the house: randomly assigned the defense and prosecution role for different cases. I think that this would do wonders for controlling prosecutorial overreach, and taming the more Savonarola-esque aspects of prosecutorial culture. It could also cut down on defense lawyer anti-authoritanianism, although this is less of an unmitigated good. And it would certainly provide a check on the (fortunately rare) instances of prosecutorial corruption. No attorney, living in such a system, could possibly bring a case in which a reasonable prosecutor did not believe.

    It would also reinforce the lawyer’s role as hired gun. Believe me: that is a good thing. “Cause” lawyers are dangerous creatures, whether the “cause” is controlling police misconduct or defending corporate misconduct. “Cause” lawyers make crappy counselors, and–when you get down to it–really are better supporters of their cause than they are of the rule of law. I toil in the corporate legal vineyards. I’m just old enough to remember the days when lawyers would check their clients in at the door when they attended bar association meetings, or served on law reform committees. That day is long gone.

    1. An interesting point and, I think, a good one. Doesn’t our military justice system work this way? For whatever its failings, which may be serious, my impression is that it does result in some even-handed lawyering.

      1. It does, and at least when I interviewed with Air Force JAG, defense was a competitive job reserved for experienced attorneys. My own take on it is that I could have defended most military defendants, inasmuch as at least at one point in their lives, they had made a selfless decision. But this is not true of many of the defendants that my office currently prosecutes. And while I could probably defend most misdemeanors and low level felonies, I simply could not defend rape and murder.

        Two more quick points: First, while prosecutor bashing seems to be in fashion right now, most of my colleagues got into prosecution because of – rather than despite – our sense of personal ethics. As a prosecutor turned defense attorney noted, being a DA was easy since he only had to get up and tell the truth. He no longer has that issue, but he does have some rather nice shoes. (Much nicer than the ones that I can afford making $51,000 per year.)

        Second, the “prosecutorial culture” that so many decry also exists in many public defender’s offices. And when they celebrate their victories, they very rarely stop to reflect on whether justice was done. Chalk it up to human nature.

        1. “Second, the “prosecutorial culture” that so many decry also exists in many public defender’s offices. And when they celebrate their victories, they very rarely stop to reflect on whether justice was done.”

          You’re going to have a pretty heavy lift convincing me that public defenders are as powerful and well-funded as prosecutors in most of the country, even when they do care as much about doing their jobs. Read this story and look at the dates — I was volunteering at the ACLU twenty years ago when they were laying the groundwork for the first lawsuit that the public defender’s office was so bad it violated the Sixth Amendment, and the problems go back at least twenty years before that.

          1. To be honest, I don’t really care whether or not you believe me. I am merely describing my empirical observations as an insider in the system. To wit, most domestic violence cases are set for trial without a time waiver. Why? Because defense attorneys know that it’s often difficult for me to track down my victim in time for trial, and that without my victim, I will need to dismiss the case.

          2. “To be honest, I don’t really care whether or not you believe me.”

            In other word, la la la la I can’t hear you I will continue to maintain that prosecutors have a great advantage over public defenders in the face of an overwhelming amount of evidence to the contrary BECAUSE I SAID SO.

            Excellent persuasive work!

        2. Is arguing to a jury that the testimony of a notorious snitch is credible “get[ting] up and telling the truth”? On rare occasions, it may be.

          Any good lawyer should be able to present both sides of the same case with roughly equal facility. Too many of those who are not of that level of ability go to work for the government.

          I have long said that I could probably be a prosecutor if I put my mind to it, but I doubt that I would ever adjust to the stick that would then have been implanted up my butt.

          1. There’s a difference between what we can do and what we would care to devote our lives to doing.

          2. Except, Josh, you did not disclaim an inclination to defend rape and murder. You specifically disclaimed your ability to do so, while professing your probable ability to defend lesser crimes.

            Moreover, criminal defense lawyers do not defend offenses. We defend humans who are accused of having committed offenses. A colleague of mine from Knoxville said it best: “I have never gone to court with a guilty client. On the other hand, I have left a few of them there.”

        3. Whether an accuser is or is not a “victim” is not a determination for a prosecutor to make, Josh. It is for a jury or a judge to determine based upon evidence or upon the absence of evidence.

      2. Nice to hear some good words about military justice. In my active-duty days I sat on many courts-martial and came away impressed with the system that has the prosecution and defense arguing before a judge (more of a referee) and a panel of officers & NCOs who are both judge and jury. Seemed to rein in the excesses on both ends of the spectrum.

    2. So, you’re saying there wouldn’t be a PD office and a DA office anymore, just one office and all the lawyers would be randomly assigned to one side or the other? That’s pretty radical. I think you just blew my mind! I thought having the judges be bi-_____ (we need a word for that? or is there one and I just don’t know it?) would be nice, but this is much heavier. Kind of cosmic. My hat is off!

      1. The thing is that the Crown Prosecution Service that handles prosecutions in England and Wales did not actually exist until 1986. Prior to that, England and Wales didn’t have much of an organized public prosecution agency.

        Historically (to some extent well into the 19th century), prosecutions in England and Wales had been brought by private citizens (the difference between a criminal and civil trial was somewhat fuzzy in those days, with a criminal trial very much resembling a civil trial between victim and defendant). Obviously, this had serious disadvantages: for example, the victim might not have the financial means to afford a trial or, in the worst case, was completely unable to do so. (In later centuries, justices of the peace alleviated many of these problems.)

        With the development of an organized police force in Great Britain, the police gradually took over the responsibility of organizing the prosecution. Still, procedurally a criminal trial functioned very much like a civil trial: Both the defendant and the police would hire barristers to argue their cases in court (unless, of course, the defendant argued his or her own case).

        After WW II, the police began gradually building their own “police prosecuting solicitors departments”, but still hired self-employed barristers to argue their cases in court (per the traditional separation between the roles of solicitors and barristers in England). With the advent of the Crown Prosecution Service, the CPS now has permanently employed barristers who specialize in prosecution, but still keeps hiring self-employed barristers (“agents”) also.

        More information on the current organization of the CPS can be found here.

  3. I was only vaguely aware of Aaron Swartz until his suicide and I admit the technical and legal details of his court case make my eyes glaze over (these aren’t my areas). But I can’t help wondering if someone who wasn’t *the* Aaron Swartz did the same thing he did with the computer and the closet and the JSTOR downloads, if the prosecution would have proceeded in the same way, if the case would have evolved in the way it did.

    Is that too tin-foil-hat a concern, that part of this was not just this specific alleged misdoing but someone who’d caused “trouble” before and would most likely cause “trouble” again?

    1. Orin Kerr’s article on the legal/technical issues, linked above, indicates that this was pretty much the charges he would expect in a case with these facts.

  4. I think the sentence offered, a guilty plea and four months in prison, was designed not just to prevent Swartz from reoffending, but also to deter similar actions in the future. I think this is the reason that MIT was reportedly opposed to the delayed prosecution.

    MIT runs a very open network to which anyone on site can connect and use. It’s a useful tool and valuable resource for MIT faculty and students as well as guests and people in the community at large. I’d guess that MIT wanted a message to be sent that anyone who might abuse this resource, either for personal gain or to further their own jerimiad against the university or some third party, faces the real posibility of a felony conviction and some time in the pokey.

    The more I learn about what acutally happened in the Swartz case, the less sympathy I have for him. He pretty much abused MIT’s cyberhospitality, causing them quite a bit of stress and trouble, so that he could carry out his acts of civil disobedience on JSTOR.

    1. It’s been pointed out that the ‘deal’ was that Schwarz would plead guilty, and then the judge would determine the sentence. Not much of a deal.

      1. That’s incorrect.

        There were actually two deals on the table. One had a four month sentence and the other had a sentence to be determined by the judge with a maximum of six months.

        What some people are “pointing out” is that a judge always has the perogative to reject any plea deal. It’s fairly rare and it would be pretty unlikely in this case, but it’s always possible.

        What happens in that case is that the plea is set aside and you go to trial.

  5. Again, that’s not a question about the ethics of this particular prosecution.

    I’d say it’s not a question about the ethics of only this particular prosecution. That the practice is widespread is a poor excuse.

  6. Yes, the prosecution was a travesty and things need to change.

    But, the suicide was because of untreated clinical depression. Let’s stop blaming the court for that.

    1. Yes, it’s not like the threat of a massive prison sentence is capable of influencing one’s behavior.

  7. Michael – you have access to Aaron Swartz’s medical history?

    I agree strongly with etv and Michael D. that part of the problem is we resort to the criminal law to solve problems far too often. One reason I decided not to become a public defender and instead went into issue advocacy is that being a PD mainly consists of assisting people to plead guilty to penny ante crimes. The U.S. experiment in mass incarceration is a failure of policy, is unethical and a human rights travesty and sadly seems likely to continue ad infinitum. This last part is true even as some states are trying to cut back on prison costs we will still be the world’s #1 jailers. Very sad.

      1. So, anyone caught up in this system and particularly someone who feels like they are facing injustice might be depressed under this situation. Let’s also point out that there has certainly been a counter-narrative that Swartz had dealt with his depression and didn’t seem to think it was a particular problem. The fact is we’ve got no way of knowing how much actual physical depression played in this case or even how much of that depression was legitimate due to the fact that the prosecution seemed to go so overboard. Moreover why shouldn’t the court or prosecution be concerned about dealing with defendants with depression? Apparently the prosecutors response upon learning of Swartz’s depression was to suggest locking him up. Nice. So just saying it’s not the court’s fault is a cover-up and it’s not going to make this thing go away.

        1. The court does have the responsibility to determine if a defendant knows right from wrong – obviously difficult in this as in other cases.

          The fact of his depression, an issue before this case, means that there is a probability that his suicide was an act unrelated, or only mildly related, to this case. But, because he did not have his day in court, where there was, obviously to all, a high probabilty of very mild sanctions, we can never know for sure.

  8. Just one of the more f*cked up things about the Aaron Swartz case…

    From Kevin Cullen in the Globe:

    “Last Friday, on the same day that Swartz hanged himself in his Brooklyn, N.Y., apartment, prosecutors from Ortiz’s office stood in a Boston courtroom and allowed a former state representative named ­Stephen “Stat” Smith to plead guilty to a misdemeanor for rigging absentee ballots in three elections. Swartz’s lawyers asked for the same consideration, that Swartz be ­allowed to plead guilty to a misdemeanor. Prosecutors refused.

    “So, given that Ortiz will not explain herself (Note: actually she has tried(?) and the face plant was painful from a thousand miles away), we’ll just have to presume she believes that illegally manipulating the outcome of elections, which are the essence of our democracy, is less serious an ­offense than downloading an online archive of obscure academic articles.”

    I suppose we all have friends like Heymann and McArdle, with brilliance, drive, dedication, and unflinching integrity, but for the most part without the platforms and megaphones. Thanks be to a most kind Providence.

    1. KLG:

      I’m terribly sorry for allowing my actual knowledge of actual people interfere with the pleasure you derive from hating them as abstract entities. I’ll try not to let is happen again.

      P.s. In case you hadn’t noticed, “Carmen Ortiz” names one person while “Stephen Heymann” names a different person. (Yes, these tiresome conventions take some getting used to.) One is politician; the other, a career civil servant.

      1. Mark,

        Yes, but it’s also true that Ortiz is Heymann’s boss. Surely her attitudes affect the behavior of those she supervises.

        I read Boyle’s post and found it pretty interesting. I also followed his link to an interview about the case with Nancy Gertner, a retired federal judge who has some experience with Ortiz, and some insight into prosecutors’ motives. She is not a fan.

        1. Seconding Byomtov here, Mark – the Cossacks work for the Czar.

          But perhaps you can redeem these two maggots with a looooooooooooooooooooooooooong list of the elite financial crooks they’ve slapped thirty-year sentences on.

          Or perhaps not, because they didn’t.

          1. Barry, I didn’t have anything good to say about Ortiz, whom I don’t know but who seems both un-self-aware and ignorant about the First Rule of Holes. I did have good things to say about Heymann, whom I do know (but with whom I haven’t discussed this case).

            Your use of “maggot” puts you in the Ortiz category rather than the Heymann/Swartz category.

      2. Mark: Two things: (1) I have been a reader of this site since long before comments were added. It is one of the few I check every day. You and your colleagues are invaluable. Thank you, all. (2) I never said I hated anyone. Period. I never would say that because that is not how I view the world. However, I did imply that Heymann’s behavior in this case is problematic. I find Heymann’s behavior perfectly understandable. But at the same time it is emblematic of the ongoing collective nervous breakdown this country has been having since September 2001. This has to stop somewhere! This would be that place to start with the stopping. And yes, I know that Ortiz and Heymann are different people. Maybe Heymann was just following orders. I appreciate that he is a friend about whom you have actual knowledge, including those attributes you list. But that is not relevant to this case.

  9. I think one of the things that bothers me about the US’s criminal justice system is that as it grows ever bigger it seems to have lost sight of the concepts of mercy, of having a space for dissent, that it is far too often used in the service of corporations, and the rich and powerful who bring money.

    I wonder if it’s helpful to think of Aaron Swartz as a dissident. The reason that this case has become so public (in addition to him being young, handsome, celebrated and of course, white) is that we can all sense something wrong in this society. Mass incarceration is one symptom but the immense (and increasing) power of the wealthy, of the prosecutors, is troubling. America thinks of itself as a place where everyone has a chance and where we have freedom of speech and I think that this situation is yet another reminder that the old idea of America and liberty (not the conservative “freedom – WOLVERINES gun freakout weirdness”) is in trouble. Does America, the home of Whitman, and of Ellsburg, and Washington and Jefferson, currently have room for its dissidents?

    1. What you say is along the lines of what I was asking. If Joe Blow, Average MIT student, put his laptop in a closet and set it to download JSTOR articles without end on a lark, would the hammer have come down so hard?

    2. “that it is far too often used in the service of corporations, and the rich and powerful who bring money.”

      I would just note that the “rich and powerful” pay tribute to the government, which kind of indicates who’s more powerful. Judging by his lifestyle, Obama is, for all practical purposes, remarkably wealthy, too.

  10. I’ve read some of those inflated, inflammatory press releases in cases otherwise known to me. Disgusting.

    Here’s another situation that undermines respect for the justice system. It’s a crime for a citizen to knowingly make a false statement to an officer, but apparently not the other way around. (“Your buddy already told us you did it.” “If you come clean now, the prosecutor/judge will go easy on you.” etc.) Shouldn’t the obligation to not lie be symmetrical? If anything, require our civil servants to be standard-bearers for honesty.

  11. Tens of thousands of people are put through the same federal meat-grinder every year: Overcharged by a federal prosecutor, threatened with decades in prison for some relatively trivial act (like growing a plant in their garden), then offered a “plea bargain” which involves giving up their right to defend themselves, but only if they do exactly what the prosecutor wants. In general, prosecutors are not allowed to bribe defendants nor witnesses, but somehow the corrupt US judicial system has made an exception by deciding that “not spending many years of your life in prison” is not a thing of value, so offering it to a witness or defendant can’t be a bribe. And the ultimate insult is that defendants who spurn the bribe and choose to assert their constitutional right to confront their accusers cannot then limit the ultimate sentence to the plea bargain offered by the prosecutor. So the prosecutor gets to lie twice (I didn’t bribe that guy; I believe the right sentence is this maximal one, not the one I offered in the plea bargain), forces the defendant to lie twice (I am guilty; and I was not bribed, I made this plea of my own free will), and justice is never served. Straightforwardly corrupt. Every day, year in and year out.

    The question is what small changes can be made that would result in moving the system closer to actual justice. Then let’s get those changes into an “Aaron’s Law” in Congress. Aaron would be proud if his ultimate legacy was that federal plea bargaining was ended once and for all.

  12. Criminal prosecution on the public dime is the closest thing to shooting fish in a barrel that the legal profession offers. William Butler Yates famously wrote that “The best lack all conviction, while the worst are full of passionate intensity.” I would suggest that, when the best and the worst copulate, the offspring become prosecutors.

    Whether they cut deals with defendants or, where defendants refuse to plead out, with snitches, prosecutors serve as liberty’s pimps. (Albeit sometimes on the layaway plan.)

  13. Required reading on this subject is “The Collapse of American Criminal Justice” by the late William Stuntz. In this excellent book, Professor Stuntz explained how juries used to be called upon to be the conscience of the community, reaching a just result based on the facts of each case. Now our criminal laws have gotten to the point where the jury isn’t asked whether the defendant did anything that the community would consider wrong. Rather, juries have been reduced to lie detectors (his phrase) whose only job is to decide whether the defendant’s actions meet the technical requirements of some statute. Once they do that job, mandatory sentences kick in that the defendant goes to jail for some preposterous amount of time. It is no wonder that few defendants are brave, or crazy, enough to actually exercise their constitutional rights to confront their accusers and have their case heard by juries of their peers. It is also no wonder that we imprison black men at a rate that would have embarrassed Stalin.

    Professor Stuntz was a gem. He died way too young. His writings are filled with brilliant, counter-intuitive arguments and I guarantee that you will be glad you got his book.

    1. Thanks for reminding me about this book. I meant to get it last year and will definitely go add it to my wish list so that I don’t forget again.

  14. Mark’s absolutely right. If my office couldn’t offer plea deals, we would have to dismiss cases for lack of resources.

    Where do you want me to start cutting?

    The drunk driver who killed her passenger and broke the other driver’s leg?

    The many more drunk drivers who didn’t kill anyone, but could have there but for the grace of providence?

    The dope grower who killed his neighbor, incorrectly believing that his neighbor (whom the defendant referred to as a “rat n*****,” btw) was sleeping with his ex-wife?

    The man who tried to smother his girlfriend with a pillow?

    The uncle who sodomized his ten year old nephew?

    The man who spent the better part of the time since he turned 18 punching his mom and his grandma?

    The guy who beat his buddy to death because he got mad at his buddy for driving off without him?

    How about the guy who killed his stepson because he incorrectly believed that his stepson was a little too Oedipal with mom?

    Or the woman who tried to hatchet another gang member to death?

    Or the guy who molested three little girls because nobody in his community could believe that he was a pedophile?

    Tell me where I should start cutting, if our system is simply that f****ed up.

    I get it, Aaron Swartz’s suicide is a tragedy, but to hear the commenters on this site, you’d think that he was the rule rather than the exception. Take my job for a month, and tell me what you’d do.

    1. What, those are the only sorts of cases you get? Not one victimless criminal in the lot? No drug dealers who don’t murder people? No copyright violators? It’s all rape and murder, day in, day out?

    2. Josh – all your examples are cases where people got killed or raped or physically attacked, not cases where someone accessed electronic content in a way that violated a user agreement. Is that the majority of your cases? If our resources are so limited that we cannot process all murderers and rapists, maybe we should stop expending resources on prosecutions such as that of Swartz.

      As for the reason for his suicide, I will not speculate on what it was. I have no insight. But the case seems messed up, and the system seems messed up. And there are other democratic countries with fair legal systems that do not rely on plea bargains to function, so it can be done. What you can do personally to get us there, beyond trying to be as fair as possible within the current system, I do not know.

    3. Cut the victimless crimes you mentioned — the guys who were “drunk drivers” who didn’t actually hurt anybody. (YOU could have killed someone in traffic today, too, but for the grace of providence.)

      And, by the way, I don’t believe you that this is your county’s entire caseload for this month. I have spent whole days in court, watching what cases come through, and see tons of penny ante stuff being prosecuted by county prosecutors. I suspect you took a year’s worth of cases and cherry-picked the few that you thought nobody would want to see go free.

      Cut all the throw-em-back-in-prison hearings for guys who were on probation or parole who got found with a joint or a rock. Cut all the guys who stole a shirt or a toy from a department store. (Just going through the “criminal justice” system and getting your case dropped is ALREADY punishment enough for a ten dollar theft.) Cut the guys who were drunk in public or who were panhandling the tourists or sleeping in the park. Cut the guys who sassed a cop and are being prosecuted for “failure to obey the lawful orders of a police officer” or “disturbing the peace” or “loitering”. Cut all the guys standing on the corner with crack cocaine. Cut all the cases that resulted from an illegal “stop-and-frisk”. But do be sure to prosecute all the sons and daughters of the police chief, the mayor, the city councilmen, the priests and ministers, who get away with whatever they want. And the ballot-rigging former state legislator.

      And in your spare time, bring a prosecution for torture and kidnapping against Bush, Cheney, and Obama over Guantanamo. It’s a war crime with universal jurisdiction — it can be tried in any court, worldwide – even yours. But you don’t care; you’re too chickenshit. You’ll prosecute the niggers, the usual suspects, and those who can’t fight back. As usual, the people who work for the government get a free pass for the most heinous crimes, all paid for by the taxpayers, while the people who work against the excesses of the government, on their own time and on their own dime, get threatened with 35 years in prison for DOWNLOADING.

    4. Josh, there are several European countries where prosecutors have an obligation to prosecute. Yet, they do not have a very different caseload from an American prosecutor. I.e., they have a similar number of convictions per capita. Plea bargaining in these countries either does not exist or is much more restricted than in the United States. Yet, prosecutors are able to handle such a comparable caseload [1].

      There are a couple of key differences, of course, that make this possible.

      First, criminal procedure is generally more streamlined. In particular, there are often fast-track procedures for offenses that do not involve jail time. This also discourages prosecutors from seeking imprisonment for minor offenses if it isn’t necessary. Even a full trial is generally not as complicated as its American counterpart. Note that this does not generally sacrifice the rights of the defendant (compared to US law, at least).

      Second, penalties are generally not as unnecessarily harsh as under US law, and thus defendants are less likely to contest charges. E.g., if Aaron Swartz could have expected a fine or a suspended misdemeanor sentence, his case would have likely been over long ago.

      [1] My godfather is a criminal prosecutor in such a country, so I actually have a pretty decent idea of how that works.

      1. Right, and in many of these countries, there is no right to a jury, and in many of these countries, the accused is presumed guilty and must prove his or her innocence.

        In law school, it was easy and popular to ask why our system isn’t more European. I can’t answer that question, nor do I feel the need to defend our system as the best of all possible worlds. It probably isn’t. However, it is the system that we have.

        And in this system, defendants are presumed innocent, and may invoke their right to jury trial, at which point I have the burden of producing evidence that they are guilty. In this system, my county has fourteen prosecutors and eight judges to serve a population of 90,000. In any given week, we have many more arraignments than potential courtrooms thirty or ninety days out. This would be true even if we completely stopped prosecuting allegedly victimless crimes (and I am NOT including non-injury DUI amongst these).

        So in most cases, sentence bargains and charge bargains (there is a difference between the two) make sense for both parties. In most cases, I can easily prove my case beyond a reasonable doubt, and I make a reasonable offer so that I don’t need to waste county resources (and time from the lives of twelve jurors and one alternate) actually doing this. The defendant gets the benefit of either reduced charges, or (more usually in most of my cases) a stipulated sentence that is likely better than what he or she will get after trial.

        1. Josh: Right, and in many of these countries, there is no right to a jury, and in many of these countries, the accused is presumed guilty and must prove his or her innocence.

          Say what? Presumption of innocence is guaranteed in article 6 (2) of the European Convention on Human Rights, to which in particular all EU countries are signatories (accession to the ECHR is a prerequisite for joining the EU). What exactly do you know about criminal justice systems in Europe?

          And I’m not sure if the part about “right to a jury” is meant to be a joke. Not only is part of the problem with plea bargaining in the US the effective partial abrogation of that right (sure, you can invoke it if you feel like risking getting a few years tacked on to your sentence, as in Aaron Swartz’s case), but it’s probably a bit overrated. Right now, I’d probably be more comfortable being a defendant under the Dutch system, which has only professional judges, but also in particular no mandatory minimum sentences and a much stronger institutional bias towards treating the defendant fairly (it is worth remembering that the decriminalization of small scale drug possession in the Netherlands had its origin in criminal justice system), let alone the German and Swedish system, which have lay judges instead of jurors.

          If you want to do comparative criminal justice, then you really have to explain more clearly why exactly the right to trial by jury in its current form is still an effective safeguard when one can make a strong argument that it really isn’t anymore what it is cracked up to be and that there are equivalent or better safeguards. (“Twelve Angry Man” is still a good movie, but a real world case study it is not.)

          1. Just my two cents, but I say, if he wanted to put his last name on, he would have. If you haven’t noticed, public servants get harassed and fired all over the place for having internet opinions. I for one find these opinions quite valuable, and I feel well able to tell who’s a faker and who isn’t (more or less), so I don’t need their whole name.

            This was rude, imho.

            what do others here think?

          2. Agree with NCG. Not cool; and a little creepy. (Possibly not even correct, but that’s beside the point.)

    5. I spent three months on grand jury service in Cuyahoga County, Ohio a couple of years ago. My panel met twice a week for 8 hours a day, hearing dozens and dozens of cases presented for indictment every day. (Cuyahoga County contains Cleveland and its suburbs, if you’re unfamiliar.) My panel was one of two grand juries empaneled for that three month period. Of all the cases we heard, I’d estimate that fewer than 10% were as you describe above, and I have no reason the assume the other panel was any different. Most cases were crappy little drug sales (mostly pot, OxyContin , oxycodone and heroin) in which the accused almost certainly went on to become confidential informants and clog the system with MORE crappy drug cases, simple assault, low-level thefts, trespass, B&E, etc. Some rapes, a few homicides, a few vehicular homicides and DUIs, but mostly nonviolent drug crimes and property crimes.

      This was in a city among the top ten in violent crime rate in the US. Where the hell do you work?

      1. I did. And I did it for a reason. Aaron Swartz is an outlier. It’s easy to point to outliers and conclude that the system is FUBAR. But as Kleiman taught me many years ago, extreme cases make for bad policy.

        The cases that I gave you all represent my first-blush memory of the cases that we had that went to trial last year. I am sure that I am forgetting a few (like a pot rip-off turned murder), but I can also tell you that my caseload consists mostly of DUIs of all varieties (and read the correlation studies if you believe that this is a victimless crime), and probably the next most prevalent cohort is domestic violence cases.

        So yeah, I’m cherry picking here. Just like you all.

        1. So why is it that you think we have imprisoned a far greater share of our population than any other country in the world. Is the U.S. inherently more crime ridden than any other country?

          My personal impression is that we criminalize too many things that should be solved in civil courts or through other means and we have enacted far too many mandatory minimum sentences.

          1. It’s not necessarily that the US is more crime-ridden. Some countries have less, some have more crime than we do.

            However, we do generally have much longer prison sentences than, say, Western Europe, and convictions are more likely to carry imprisonment as a penalty, both due to more punishing criminal statutes and more aggressive prosecution.

          2. No clue. That is the sort of question that can’t even begin to be answered in two paragraphs. Education? Disparity of economic opportunity? Genetics? A culture that has historically embraced criminality and violence? Criminalization of some things that probably ought not be criminalized? Too harsh sentences for some crimes (and not harsh enough sentences for others)? Probably some combination of the above, plus other factors that aren’t occurring to me in the two minutes that I’m devoting to this.

  15. Is it so clear that Swartz violated the terms of service? If I understood the description in some of the linked articles, MIT ran an extremely open network intentionally. If it was as wide open as described, were the terms of service more restrictive than the network in fact was? Is there a narrative anywhere that is reliable as to what Swartz did and didn’t do?

  16. You describe Heymann as being like Swartz in having, “..brilliance, drive, dedication, and unflinching integrity.

    Drive and dedication sound a little like “ambition,” and “zeal” to me, and those attributes, especially in prosecutors, can erode judgment. Isn’t it possible that happened here? I think so.

    As for “unflinching integrity,” I would say this. People with unflinching integrity do not use the “everyone does it” excuse to justify their own behavior. I don’t know that Heymann has done that, but Kerr’s defense, and yours, seem to.

  17. Mark, Ortiz runs that office. Stop pretending ignorance. Also, You didn’t address my point about the big financial ciminals skating.

    And finally, Mark – your judgement of people is rather bad.

  18. One other thing. That Aaron Swartz should have been willing to pay the price for his civil disobedience is true, although those making that argument fail to take into account the lack of proportionality between the alleged offense and the multiple felony indictment. By the same token, that Ortiz and Heymann should have to pay the price for their overreach is also true, the first in the self destruction of her political ambitions (she has angered those who will not forget and who do have the wherewithal to foreclose her options), the second in the recognition that he has very poor judgment and is quite likely a bully. And I do wonder whether the reason for Ortiz and Heymann taking such a hard line in their attempt to force Swartz into a confession was that they realized finding 12 jurors in Boston who would go along with their thesis would be impossible, particularly since the primary aggrieved party wanted no part of the prosecution and that when push came to shove, MIT would realize the untenable position in which it had placed itself?

    Happy MLK Day, which honors perhaps the one indispensable American of the 20th Century.

    1. “One other thing. That Aaron Swartz should have been willing to pay the price for his civil disobedience is true, although those making that argument fail to take into account the lack of proportionality between the alleged offense and the multiple felony indictment.”

      I’ve been tempted to post the following fake quote (although the sentiment is probably accurate):

      [‘If you can’t do the time, then don’t do the time’ – Saddam Hussein, after watching the torture and execution of dissidents.]

  19. Mark Kleiman says:

    “Barry, I didn’t have anything good to say about Ortiz, whom I don’t know but who seems both un-self-aware and ignorant about the First Rule of Holes. I did have good things to say about Heymann, whom I do know (but with whom I haven’t discussed this case). ”

    Mark, first I’d appreciate it if you’d acknowledge ‘the Cossacks work for the Czar’. If you don’t understand it, then please have a colleague explain it.

    Second, your statement “Your use of “maggot” puts you in the Ortiz category rather than the Heymann/Swartz category.” is rather hard to understand. Heymann hounded Schwartz to his death by threatening punishment far more draconian than called for; that makes him a maggot. That you seem to think better of him (a) does not contradict this fact, and (b) I file with your opinion of the notorious hack Megan McArdle.

    Ortiz’ subordinate – that would be Heymann – Schwartz to his death by threatening punishment far more draconian than called for; that makes her a maggot for not doing anything about it. I can further say that Ortiz is a maggot because of the plea bargain over attempting to rig an election, which seems to be a misdemeanor offense in her eyes. My statement that neither one of them has done squat about massive financial fraud is a guess, but a very good one, given the massive financial fraud we’ve seen, and the DoJ policies towards it (which are about like a pack of bribe-taking corrupt cops would have). Perhaps you could have Heynmann and/or Ortiz post the many looooooooooooooooong sentences they’ve slapped financial big boys with (i.e., not schmucks), in which case I’ll modify my remarks. Until then, they’re Javerts.

    There was a discussion over on Jim Henley’s site about you, and the heart of it was that you have strange likes and dislikes, which are rather ideologically biased. This is another example of it.

    1. Not to defend Ortiz generally — and I don’t know the particulars of the case — but election fraud can rest on pretty tenuous evidence. Stack that with the likelihood that the defendants are wealthy with access to very good lawyers and I can see how you might face a really ugly choice: go to trial with a high probability of seeing these creeps walk or strike a plea bargain and get at least some measure of punishment. Of course, I could be completely wrong about the facts of the case.

      But I do think Ortiz and Heymann seriously overreached with Swartz. I think they should be punished with some consideration that there’s a whole army of prosecutors who would have acted the same — but not much consideration. What they did, while not criminal, sadly, is far more harmful than anything Aaron Swartz did (which as far as I can see is violating a ToS agreement on a wildly open network).

  20. BTW, PBS is running a Frontline Special (http://www.pbs.org/wgbh/pages/frontline/untouchables/)

    “FRONTLINE investigates why Wall Street’s leaders have escaped prosecution for any fraud related to the sale of bad mortgages.”

    Note that DoJ includes Michael ‘A Good Man’ Heymann and Carmen ‘A totally different person’ Ortiz.

    And also that the charge is not that not enough people were prosecuted, but that the DoJ treats Wall St as if it is above the law, when it comes down to the Big Boyz.

  21. This isn’t just a ‘justice’ problem. Prosecuting idealistic whistle-blowers/civil disobedience doers is also a terrible economic problem, similar to the kind of Biblical problems ignoring and/or persecuting Prophets caused biblical rulers and ancient greeks. A felony conviction takes these highly productive and imaginative people out of the mainstream of the economy *for the rest of their lives*. They can’t get good jobs, or teach, or influence policy, or so forth. Who loses? Not just Swartz: we do. I do. You do.

    I also call bullshit on the idea that Aaron Swartz should have been willing to pay the price for his ‘civil disobedience’. He wasn’t making a point by using civil disobedience, (like the Keystone XL pipeline protestors surrounding the White House), he was trying to make a change, to FREE publicly-financed information to the public. Of *course* he would have continued trying to do the same thing. That should NOT have been illegal to start with. Daniel Ellsberg wasn’t prosecuted for doing the same thing with the Pentagon Papers. But look what we’re doing to Bradley Manning, and what we did to Tim DeChristopher and Aaron Swartz.

    We’ve got to stop prosecuting idealistic law-breakers who do not gain from their actions. We need them to protect us from descent into tyranny/oligarchy, and to point out society’s legal mistakes.

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