Denver criminal defense lawyer / Aaron Swartz and shots fired

Even though I'm a Denver criminal defense lawyer I keep up with stuff in the national news because national and non-Colorado news can be relevant to my clients. Something that's been all over the news is the Aaron Swartz case. This case has huge implications for the practice of criminal law all over the country. It's not so much that there is anything new in the case. There are no novel legal developments here. It's the lessons of the case that are important.

I've mentioned that prosecutors have a huge amount of power over a particular in many circumstances. In most of the cases that I handle as a Denver criminal defense lawyer, none of this really comes into play. The Denver district attorney or other district attorney's office has a set guideline for what a DUI or other case will bring as a sentence. Within the set range, the deputy has discretion based on a variety of factors (including how strong he thinks the case is) to offer a plea bargain with a certain sentence, then seek a certain sentence if the trial results in a conviction.

Of course not all cases are so run-of-the-mill. A simple traffic ticket or something similar does not involve much in the way of political implications. Something that can involve real political implications is copyright infringement or intellectual property issues. That's what Aaron Swartz got himself involved in.

Now whether Mr. Swartz committed a crime at all an how severe the crime was (if you believe it was a crime) depends on how you frame the issue. Swartz's supporters and his lawyer say that he simply downloaded information that was freely available over MIT's wireless network. At the time of his arrest, Swartz had not distributed the journal articles he downloaded from the network (though it's pretty apparent that he intended to do so at some point). Swartz did not intend to gain monetarily from such a distribution.

The prosecutors say the articles were disseminated by JSTOR, a non-profit publisher, and point to the number of articles downloaded (more than 4 million) before stating the usual tripe about how intellectual property can be stolen just like regular property. We can go into this later.

However, the main point is that Swartz did not deprive anybody of the use of the articles. He only deprived JSTOR of the profit they potentially could have made distributing the articles (which I suppose is also use). It's not even all that clear that anything he did up to the point where he was arrested was illegal, since he hadn't distributed it yet.

To the extent it was illegal, he broke an incredibly obtuse and difficult to parse law which could be applied to such a huge number of people it is nearly meaningless as an enforcer of order. When people are prosecuted under the law Swartz was prosecuted under they are essentially at the mercy of the prosecutor. For more on this see the Bazelon article linked above.

Prosecutors always have a lot of discretion, but when the case is unique and prosecuted under a broad and rarely used law, their power becomes almost absurd. In this case, the prosecutor threatened a person who had really harmed nobody with up to 30 years in prison, before offering his lawyer a plea bargain of 6 months in prison.

Swartz's suicide makes the issues here more emotionally complex. However, even beyond that is the underlying issue of a prosecution to send a message. There are lots of ways to view how justice should be meted out. A deterrent rationale is certainly valid even though it would appear to punish someone more than the individual crime would warrant.

However, what's going on here is much more than a deterrent to people who might commit a crime. The determination here is that it would be too difficult administratively to punish everybody with the lighter sentences they deserve. As such, we'll just bring the wood on the few people we do choose to prosecute. That brings a level of arbitrariness to the prosecution process that should make everybody extremely uncomfortable.

With a crime like murder, we can't punish everybody because we can't catch them. With shoplifting, sometimes the store will choose not to press charges and then not much can be done. There are valid reasons for prosecuting apparently similar crimes differently. The point of the Swartz case and many other intellectual property cases however appears to not only undercut ANY rationale for choosing which cases to prosecute, but to do so deliberately and as a means of deterrent.

This seems to me to undercut the very foundations of justice. The idea of justice is that people are treated the same way, and if they are not there is a good reason for it. It is not just to hammer some law-breakers randomly in order to send a message to other lawbreakers. Could we cow people into more law-abiding behavior by following a small percentage of the population around with clandestine cameras, with the threat to the general population that any criminal act at any time might be caught and punished severely?

Of course, but such an outrageous discrepancy made at random in order to make a point strikes most everybody as outrageous. That's because it is. Prosecutorial discretion exists to make the hard choices about law enforcement's resources. If a prosecutor's office can't do everything, they can make choices about how to handle it. It shouldn't be used to make a gigantic political point, and prove the government is tough on hackers. Doing so is arbitrary and capricious to the point where it should offend people's basic sensibilities of justice.