U.S. Attorney Carmen Ortiz, who oversaw the prosecution of the late Internet activist Aaron Swartz, released a statement yesterday defending her office’s decision to pursue a long list of felony charges against Swartz for his efforts to download and make public a paid database of scholarly articles. Had Swartz received the maximum penalties for the charges he faced, he would have spent many decades in federal prison. Nevertheless, Ortiz says that her office never truly pushed for such a stiff punishment:
The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.
First of all, everyone interested in this case should read Orin Kerr’s thoughts on Ortiz’s conduct. As Kerr correctly explains, most judges follow the Federal Sentencing Guidelines, not the statutory maximum sentences, when it comes time to determine a convicted defendant’s punishment. The Guidelines called for a much shorter sentence than the 50 or more year maximum sentence Swartz theoretically could have received. Kerr estimates that Swartz would have received, at most, “a few years in jail if he went to trial.”
Nevertheless, while Ortiz’s statement that her office neither sought nor told Swartz’s legal team that they would seek a fifty year prison term may be technically true, the idea that Swartz faced decades in prison didn’t exactly spring Athena-like from the heads of liberal bloggers — it came from Ortiz’s own press release. Shortly after the indictment against Swartz was unsealed, Ortiz’s office bragged to the press that “SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million” if convicted of the charges against him. The charges against Swartz were later amended to include additional counts that brought the maximum possible sentence above 50 years.
So prosecutors probably never told Swartz’s attorneys that their client faced nearly an entire lifetime behind bars. But it is impossible to imagine the dread Swartz must have felt upon reading his own name followed by the words “faces up to 35 years in prison.” A man consumed by fear that he could spend his adult life in prison is in no position to think rationally when a prosecutor — backed by the full power of the United States of America’s monopoly on the use of legitimate force — offers him the opportunity to instead be able to love and live and form a family someday if he signs on the dotted line and agrees to a much shorter jail term. There is little doubt that Ortiz knew this, or that her office did not intentionally pile charge after charge against Swartz in the hope that the full weight of them would cause him to break in a plea negotiation.
And this tactic of intimidation stretches far beyond Ortiz’s office. The sad truth is that this tactic is a common tool wielded by prosecutors — it is just more often broken out against small-time criminals with few resources and no access to the press. As Kerr notes, “[w]hat’s unusual about the Swartz case is that it involved a highly charismatic defendant with very powerful friends in a position to object to these common practices.” If Ortiz’s actions were wrong when applied to an Internet pioneer with famous friends, then they are even more wrong when applied to a minor drug offender whose only lifeline is a public defender he just met.