Aaron Regunberg: The Loss of an Incredible Soul
Friday, January 25, 2013
He was a hero to thousands of political organizers and internet activists around the country, who continue to mourn his passing (this memorial site can give you a small sense of all the lives he touched).
By most accounts, Aaron Swartz was driven to suicide in large part because of the overzealous prosecution he was facing for an attempt two years ago to download a large number of scholarly articles from an academic database onto his computer.
In the words of noted legal scholar Lawrence Lessig, “Aaron's alleged ‘crime’ was that he used MIT's network to access a database of academic journal articles (JSTOR) and download millions of those articles to his laptop computer. He didn't "hack" the network to secure those downloads: MIT is a famously open network. He didn't crack any special password system to get behind JSTOR's digital walls. He simply figured out how JSTOR was filing the articles that he wanted, and wrote a simple script to quickly gather those articles and then copy them to his machine.”
Despite the benign nature of this stunt (JSTOR refused to press charges, and even the prosecution conceded Aaron acted on principle and for no financial gain), U.S. Attorney Carmen Ortiz chose to go all in on the case, charging Aaron with up to 35 years of prison. As Lessig put it, “Facing the choice between a federal prosecutor who insisted that he either accept the label ‘felon’ and go to jail or fight a million-dollar lawsuit against 13 felony indictments, Aaron took the third option, and hanged himself. And with that we all lost an incredible soul.”
Appropriately, Aaron’s death has inspired a great deal of advocacy in the last two weeks. Thousands have joined together to call for Carmen Ortiz to face consequences for her prosecutorial overreach (a petition to the White House requesting her removal took only a day or two to pass the 25,000 signatures required for an official response); and still more activists are now fighting for what’s being called “Aaron’s Law,” a bill recently submitted by California’s Congresswoman Lofgren that would limit the scope of the Computer Fraud and Abuse Act and ensure that future violations of the “terms of service” (that little box you click on websites without reading all the text) would be treated as the simple civil-law breaches of contract that they are, and not felonies potentially resulting in major prison sentences.
I believe this advocacy is incredibly important, but I also hope that the tragedy of Aaron Swartz’s death will highlight a more fundamental problem in our criminal justice system that desperately needs to be addressed: prosecutorial bullying. Because while Aaron’s situation was unique in that Aaron himself was such a unique and brilliant figure (as well as in that his case most likely involved political motivations), the strategy used by Aaron’s prosecutors is the same one utilized against thousands of Americans every day: exploit harsh mandatory minimum sentences, three-strikes laws, and the unreasonable sentencing upper-limits we have on the books for nearly all crimes in order to intimidate defendants into forfeiting their constitutional rights and pleading guilty.
Michelle Alexander, author of The New Jim Crow, has written extensively about how the movement towards stiffer sentencing in the United States has resulted in a dramatic power shift from judges to prosecutors. “The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment. No wonder, then that most people waive their rights.”
The Constitution guarantees basic safeguards to the accused for a reason, and it should be of great concern to all of us that government officials have engineered a system in which prosecutors have almost unchecked authority to bully defendants with outrageous sentences. This is how more than 90 percent of criminal cases are resolved, and it is this system that has allowed our nation’s prison population to quintuple in the last three decades, so that while the United Sates has only five percent of the world’s population, it has 25 percent of all the world’s prisoners.
While it was one specifically unjust prosecutor who used a few specifically unjust sentencing laws to harass Aaron Swartz into taking his own life, Aaron’s unfortunate situation was the outgrowth of a much larger structural problem. Our criminal justice system gives prosecutors too much discretion to bully defendants with all sorts of excessive charges, while giving judges too little power to rein in these prosecutors when they get out of control. This prosecutorial bullying has already wreaked havoc on countless lives, and will continue to destroy communities, individuals, and even our most exceptional heroes until we take a lesson from Aaron and join together to fight for a major reformation of America’s unjust justice system.
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