Two for Aaron

Legal interpretation takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another. …

Precisely because it is so extreme a phenomenon, martyrdom helps us see what is present in lesser degree whenever interpretation is joined with the practice of violent domination. Martyrs insist in the face of overwhelming force that if there is to be continuing life, it will not be on the terms of the tyrant’s law. Law is the projection of an imagined future upon reality. Martyrs require that any future they possess will be on the terms of the law to which they are committed (God’s law). And the miracle of the suffering of the martyrs is their insistence on the law to which they are committed, even in the face of world-destroying pain. Their triumph—which may well be partly imaginary—is the imagined triumph of the normative universe—of Torah, Nomos,—over the material world of death and pain. Martyrdom is an extreme form of resistance to domination. As such it reminds us that the normative world-building which constitutes “Law” is never just a mental or spiritual act. A legal world is built only to the extent that there are commitments that place bodies on the line. The torture of the martyr is an extreme and repulsive form of the organized violence of institutions. It reminds us that the interpretive commitments of officials are realized, indeed, in the flesh. As long as that is so, the interpretive commitments of a community which resists official law must also be realized in the flesh, even if it be the flesh of its own adherents.

—Robert Cover, Violence and the Word

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.” They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a “subversive activity,” such as we have for murder or larceny. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened or affected thereby. Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term “Republican” and the term “Democrat” were epithets with sinister meaning to denote persons of radical tendencies that were “subversive” of the order of things then dominant.

—Robert Jackson, The Federal Prosecutor

The sentence which immediately precedes your excerpt from Attorney General Jackson’s 1940 speech reads:

What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

I have a feeling that part of what drove the DOJ to prosecute the late Mr. Swartz was that they were determined to prevent any further real harm from someone who was talented enough to write a few lines of code to shutdown the Air Traffic Control system or interbank clearances. After the PACER and JSTOR incidents, they were maybe not willing to enter into any agreement whereby they would have to think about what stunt might be next on Mr. Swartz’s agenda.

Anyone who knows how PACER, JSTOR, air-traffic control, and bank clearances work knows that downloading millions of documents from the first two is very easy, and that doing any harm to the latter is very hard. And anyone who knew Aaron knew that he would never crash airplanes or rob banks. If the prosecutors didn’t know this much, they should have.

Whether my examples were well chosen or not, I am just trying to intuit the motives of the prosecution without using words such as ‘Orwellian’ and ‘diabolical’. The answer mostly likely is far more simple than some of the explanations I have read.

It is absolutely unethical to prosecute for A to prevent a hypothetical B. If that is indeed what the prosecutors were doing, then that is already abuse of prosecutorial discretion. The fundamental principles of criminal law are to prosecute for the crime committed. Not the crimes that might be committed; not the crimes that may have been committed: The crimes that were committed.

Is there any proof that Aaron Swartz committed suicide because he was a completely voluntary, massive copyright violator (which is after all a crime)? Or was it because of any of many other things that could have been happening in his life?

It does not seem unethical to prosecute with sufficient proof of Act A and then have the terms of sentencing, if convicted, or plea, prior to trial or conviction, to prevent any hypothetical Act B.

BTW from NYTimes 29JUN2005 article on the sentencing of CEO Bernie Ebbers of WorldCom:

In their brief, prosecutors challenged each contention and argued that a tough sentence would deter other potential wrongdoing.

“Corporate executives will, in the future, consider the sentence imposed on Ebbers whenever those executives are tempted to mislead shareholders or manipulate the financial statements of their companies,” the prosecutors said. “General deterrence serves an important function and works, perhaps even more effectively than in the context of other types of criminal conduct, to prevent financial crimes of the sort committed by Ebbers.”

General deterrence works, if at all — and is therefore only justified, if at all — on other would-be perpetrators who identify with the person who is the subject of the deterrent sentence. It is unlikely that spammers, identity-thieves and other malicious hackers would identify with Aaron Swartz’s objectives, his conduct, or his methods.

Without the obvious consequences, I don’t think in this case the prosecutors were really concerned with anyone other than the late Mr. Swartz himself. As to the others, whether deterred or not, they would have a decent example of how they might be treated should they actually be caught in the act.

I am only trying to determine a rational explanation of the prosecution’s intent. If someone wants to say it was irrational, that is up to them

Frances, Aaron’s final thoughts are unknown to anyone now living. But we have the testimony of three of his attorneys, his partner, his parents, and several of his close friends (some of whom are close friends of mine) that he was distraught at the prosecution, at the strain it was placing on his relationships with family and friends, and at the threats being held over his head of decades of time in federal prison. Also, he was never charged with copyright infringement.

John, it’s not just unethical to base the sentence for crime A on the defendant’s potential to commit crime B in the future, it’s unconstitutional. It would violate the Sixth Amendment right to trial by jury.

Aaron Swartz was buried today. I’m in mourning, and so are many of my friends. If the two of you would like to continue making factually ungrounded arguments and speaking ill of the dead, please take it somewhere else.