The suicide of Justice Department defendant Aaron Swartz underscores the vast and often unfair power that prosecutors often wield in cases across the nation.
Swartz, 26, a web innovator and social activist, was found dead by hanging at his Brooklyn apartment after federal prosecutors in Boston made clear they would require him to face 13 felony charges for excessive downloads of free scholarly journals from a library.
The circumstances of his case may be unique. But the excessive zeal of prosecutors is all too common, as indicated by the clips below and our three years of research at the Justice Integrity Project.
In fact, the top federal judge in Massachusetts even warned the state's U.S. Attorney Carmen Ortiz, left, at her swearing-in against zealotry. Attorney General Eric Holder looked on during the 2010 ceremony presided over by Chief U.S. Judge Mark Wolf, a former Justice Department official who has complained for years to Holder and other Justice officials that they must do a better job overseeing their staff. Wolf, undertaking his own investigation of the Justice Department following a major Mafia case, found serious wrongdoing in the mid-1990s by more than a score of prosecutors and FBI agents.
But Ortiz, Holder and their subordinates, like so many of their predecessors, apparently pursued in the Swartz case a familiar pattern of hardball tactics and victory at all costs. At the defendant's funeral Jan. 15 in Chicago, father Robert Swartz told the assemblage his son “was killed by the government.”
Justice Department prosecutors reportedly played hardball in plea negotiations with the defendant, a researcher at Harvard University, in requiring him to plead guilty to 13 felony charges for downloading some 4 million publications at the Massachusetts Institute of Technology (MIT) library in late 2010 and early 2011. Credentialed students are able to download limited numbers for free. Harvard Law School Professor Lawrence Lessig, an expert on computer law and an occasional mentor at Harvard to Swartz, said the prospective punishment was vastly out of proportion to the defendant's actions. Swartz is shown at right in a photo on Wikipedia.
Legal commentator Glenn Greenwald summarized recent developments this way in a Jan. 16 column in the Guardian: Ortiz's office escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which “carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony,” meaning “the sentence could conceivably total 50+ years and [a] fine in the area of $4 million.” That meant, as Think Progress documented, that Swartz faced “a more severe prison term than killers, slave dealers and bank robbers.” Swartz's girlfriend, Taren Stinebrickner-Kauffman, told the Wall Street Journal that the case had drained all of his money and he could not afford to pay for a trial.
New reporting by Truthout suggests a potential motive for the prosecution team, aside from the common incentive of crushing a defendant to win career advancement: Swartz had been seeking separately to obtain federal court documents as a public service in ways not authorized by the Justice Department in its plan to make them available for free at 19 libraries. The documents are normally available for free inspection at courthouses. But litigants and interested members of the public must pay copying costs and, of course, have the ability to travel to courthouses for inspection. The documents are available also for a fee via the federal electronic PACER system. .
The Boston prosecution team appears to be headed for deserved disgrace. But any shame for them is most valuable if it deters other injustices. Greenwald aptly argued that theme in his Jan. 16 column in the Guardian, Carmen Ortiz and Stephen Heymann: accountability for prosecutorial abuse. His subtitle was, “Imposing real consequences on these federal prosecutors in the Aaron Swartz case is vital for both justice and reform.” Greenwald continued:
Clippings below illustrate a tragic pattern whereby authorities exercise zeal far out of proportion to the offense or legitimate correction goals of punishment and deterrence.