By JOHN W. DEAN
Justia columnist, and former councel to the President
...While watching President Obama’s second inauguration, I was also reading the recent, brief, but quite thought-provoking essay written by University of Tennessee law professor Glenn Reynolds, “Ham Sandwich Nation: Due Process When Everything Is A Crime.” Reynolds’s piece was prompted by the tragic suicide of Aaron Swartz, the young computer-programming wizard, political organizer, and Internet activist who fell into the clutches of the Boston U.S. Attorney’s Office, which, at the time Swartz took his life, was planning to forever ruin him over an apparent act of civil disobedience, in order to make an example of him. (This is my characterization of the treatment of Swartz, not Reynolds’s.)
Appropriately hoping to encourage further debate, Glenn Reynolds has raised even broader due process questions posed by the work of federal prosecutors generally, given the fact that they have remarkable and largely unfettered powers to implement a federal criminal code that is so broad and extensive (when it is not strikingly vague) that it literally makes unwitting criminals of potentially almost everyone. Aaron Swartz learned these frightening realities about the federal code and prosecutorial powers too late.
(...) The Overzealous Overcharging of Aaron Swartz
From the initial statements of Boston U.S. Attorney Carmen Ortiz, who made the highly debatable statement that “Stealing is stealing, whether you use a computer command or a crowbar,” to the upping of the charges from four counts in 2011 to thirteen counts in 2012, this was heavy-handed treatment for a 25-year-old information activist.
In fact, the backtracking defense mounted by the Boston U.S. Attorney’s Office of its own conduct in the Swartz case reveals that U.S. Attorney Carmen Ortiz now understands that they were using a sledgehammer for something that was merely worthy of a slap on the wrist, apparently along with her assistant, career federal prosecutor Stephen Heymann. For example, CNN reports that Ortiz’s office now says the prosecutors had no evidence that Swartz had acted for personal gain, and they apparently concede that calling for the harshest penalties available under the law was not appropriate, given his alleged offenses. Ortiz’s office now claims that had Swartz been convicted under her office’s draconian charges, they would have recommended that the judge sentence Aaron to six months in a low-security setting (They may have also offered him a six-month sentence in jail if he pled guilty to one of their charges.)
It appears that Aaron Swartz was looking at somewhere between 6 months and probably 6 years for downloading academic journals from MIT’s network. I am sorry, but this just does not compute. It strikes me as way overcharging, for no apparent reason (...)