Did The Federal Prosecutors Treat Aaron Swartz Too Harshly?

After 26-year old entrepreneur and activist Aaron Swartz killed himself last week, his family and friends laid some of the blame on federal prosecutors who had charged him with crimes for a 2011 hacking incident.

The contention was that the prosecutors behaved unfairly, painting Swartz's actions in the worst possible light and charging him absurdly harshly—enough to get him hit with a life sentence in prison.

The charges put Swartz's life on hold, and according to his friend Lawrence Lessig, bankrupted him. The stress and cost of preparing for a trial, Swartz's friends said, contributed to his suicide.

As I described in a previous article, legal situations like the one Swartz was in are unfathomably stressful. To a very large extent, your life is in the prosecutors' hands, and deciding to try to defend yourself is a risky, expensive, and all-consuming decision.

If you have "done it"—if you are guilty as charged—the much safer and less expensive route is to plead guilty and accept the consequences.

But this legal strategy depends on the prosecutor having treated you fairly and offered you a fair deal.

if you haven't "done it," or you are guilty only of lesser infractions, or if the prosecutor is insisting on a draconian admission and punishment that is way out of proportion with your actions, then the decision becomes even more difficult.

That's why "prosecutorial discretion" is so important.

Although our system does give the accused a right to defend themselves, the reality is that prosecutors have a huge amount of power and leverage—to the extent that prosecutors don't just act as "adversaries" in this system but as judge and jury. And if prosecutors use that power to force plea deals or harass or "bully" people, they can justifiably be accused of overreach.

In the wake of the Swartz tragedy, it seems important to figure out whether the prosecutors in the U.S. Attorney's office did, in fact, overreach.

Before sharing what I have learned on that question, I want to be clear about one thing: Although the stress of being prosecuted probably weighed heavily on Swartz and contributed to his decision to kill himself, it would be grossly unfair to suggest that the U.S. prosecutors "killed" him. Swartz had struggled with depression for years. And that depression—which is an extremely serious affliction—likely played the major role in his death.

The prosecutors in this case, meanwhile, like all prosecutors, have a difficult job, and they play a critical role in society. As long as prosecutors do their jobs fairly, they should not be held responsible for the stress and challenges in the lives of those they investigate and prosecute.

The key is whether the prosecutors do their jobs fairly. Or whether they abuse the power of their position to "make statements" or further their own goals and careers.

In the Swartz case, we can begin to determine that by asking the following questions:

• Was it fair for prosecutors to charge Swartz with the crimes they charged him with? (13 felonies in connection with a hacking incident in which Swartz spoofed his way into MIT's computer network, took steps to disguise his identity and defeat electronic efforts to stop him, and downloaded 4.8 million academic papers from the online service JSTOR).
• Did prosecutors offer Swartz a fair plea deal?

On the first question, based on the facts outlined in the indictment the prosecutors filed, which have not been proven, as well as the information that has come out by those who defend Swartz's actions, it seems that the prosecutors were acting harshly but within their rights.

Swartz, like many idealistic people in the tech and activist community, appears to have believed that information should be free and that Swartz was therefore just liberating information—academic papers—that should have been more freely available. But in the process of liberating these academic papers, Swartz seems to have broken laws. And even those who believe the prosecutors were unfair to him, like Lawrence Lessig, believe that he behaved unethically.

This analysis on The Volokh Conspiracy, which is written by law professors, concludes that most of the charges against Swartz were fair. Swartz's own attorneys, meanwhile, don't seem to dispute Swartz's alleged actions in the case: Rather, they are saying they would have won the case because the government violated search and seizure rules when it took one of his laptops. (Prosecutors should have to follow the rules, and if they didn't follow them, Swartz should have won his trial. But that's a different issue than whether he broke these laws.)

The alternate view is that, because Swartz's actions were essentially victimless, and because the owners of the service he hacked (JSTOR) and the network he used (MIT), did not take action against him, that the prosecutors should have just let it go or charged Swartz with a misdemeanor or other lesser offense.

This seems like the more reasonable view. Aside from slowing down JSTOR's service and creating an inconvenience, Swartz's actions didn't hurt anyone. "Stealing" a digital copy of something also does not have the same impact as stealing a physical thing, no matter how the action is portrayed. (It's not okay, by any means. But it is different. The "victim" in a digital theft still owns the thing—all that has been stolen is a copy. And because, in this case, the digital things that were stolen, academic papers, are generally available for free anyway—and because Swartz didn't do anything with his copies—it's not as though Swartz caused a major financial loss for JSTOR).

So based on an initial look at this question, my sense is that the prosecutors' charging decisions were very harsh but within the range of "fair." They took a hard-ass view, perhaps because one of them, Stephen Heymann, has made a career out of prosecuting cyber-crimes and clearly feels strongly about them. But they don't appear to have blatantly overreached. Swartz just had the bad luck to run into a prosecutor who was very passionate about defending the lines that Swartz appears to have crossed.

The second question is whether the prosecutors offered Swartz a fair plea deal.

According to Michael Daly in The Daily Beast, Swartz's attorney was lobbying for the following deal:

• Plead guilty to a misdemeanor
• No jail time

The prosecutors, meanwhile, were insisting on:

• Plead guilty to all 13 felonies
• 4 months in jail

Insisting that Swartz plead guilty to 13 felonies is undeniably harsh—arguably absurdly so in light of the circumstances of this incident. Importantly, however, the "4 month" jail sentence is vastly shorter than the effective "life imprisonment" that would have resulted from adding the sentences for all the charged felonies on top of one another.

Was the prosecutors' offer a fair deal?

Given that Swartz presumably believed that he had done something morally right if legally wrong, this probably seemed like an outrageously harsh sentence. And many Swartz defenders, who view his actions as unethical but harmless, agree.

It would have been extremely tough for Swartz to plead guilty to being a felon. And Swartz's attorney was, probably justifiably, worried about what might happen to him in prison. (This is unfortunately a reality that needs to be considered here.)

But it's also important to note that there is a big difference between four months in prison and "35 years in prison," which is the sentence you get if you just add up the sentences for all of the felonies. And Swartz does appear to have broken some laws.

Swartz's other option, meanwhile, was defending himself. Although Swartz's lawyer believes he had a good case, and although he would probably have been a sympathetic defendant, he obviously could have lost. And if he had lost, he would have been convicted of at least some of the felonies and gone to jail for much longer than four months. (The prosecutor's estimate, Swartz's lawyer told the Daily Beast, was 7 years—because the judge in the case is known for harsh sentences). And, regardless of whether he won or lost, Swartz's trial would have been extraordinarily stressful and time-consuming and would have cost him a fortune—a fortune that, according to Lawrence Lessig and Swartz's friends, he no longer had.

The bottom line, at least based on the information I've seen to date, is that the U.S. Attorneys in this case—Carmen Ortiz and Stephen Heymann—seem to have taken a very hard line on Swartz's case.

Whether Ortiz and Heymann took too hard a line, or whether they should have been fairer and more understanding in their plea offer, is a question that they should—and no doubt will—ask themselves frequently in the coming years.

And Aaron Swartz's case is certainly a good excuse for the country to evaluate how much power we place in the hands of prosecutors.

Swartz's death is a tragedy, regardless.

But if we can use it to make our system better, Aaron Swartz probably would take solace in that.

SEE ALSO: Aaron Swartz's Death Is A Tragedy—And Some Questions Need To Be Answered