Swartz, you may recall, was the Internet innovator who chose to kill himself rather than face charges that could have sent him to prison for longer than he’d been alive.
But from Attorney General Holder’s perspective, to judge by what he told Sen. John Cornyn, if Swartz was at risk of a 50-year prison sentence, that wasn’t because Holder’s prosecutors were being abusive—it was because Swartz was being uncooperative. The prosecutors, after all, had given Swartz a series of quite reasonable plea offers: three months in jail, four months in jail, or an opportunity to argue for a sentence with no jail time at all under a plea where the government would ask for up to six months. And a short jail term, Holder says, would have been a penalty that fit Swartz’s conduct. In evaluating the justice of what his Department of Justice did to Swartz, Eric Holder says he considered the plea offers more than the charges. Holder even criticizes news reports that cited the potential sentence Swartz could have faced after trial as “not consistent” with the prosecutors’ interactions with Swartz: after all, there was “never an intention” on the government’s part that Swartz would go to trial, be convicted, and receive the maximum sentence.
But what Swartz would have to do to take any of those deals, of course, was to plead guilty—to accept that he had improperly accessed an academic database through a university network and that this made him a felon. He refused to condemn himself. And it was that refusal to plead guilty that put him at risk of half a century without his freedom. In effect, Swartz was facing a four-month sentence for his alleged misconduct, plus a sentence of up to 49 years and eight months for insisting on his day in court.
Aaron Swartz was destroyed, not by the judgment of his peers, but by a process of intimidation designed to make him give up his freedom without a fight.
It’s hard to know how many plea bargains result from such bullying. But we do know that 97 percent of federal “convictions” result, not from the judgment of a jury, but from a defendant’s decision to plead guilty. More than that, we now know that the Attorney General of the United States thinks it is OK to charge a man with crimes carrying a combined sentence literally 150 times as long as you think he deserves, then offer him the sentence you think he deserves if he’ll give up his right to a trial. And longtime readers of this blog will recall a case where the government, in demanding a much longer sentence for a man convicted at trial than those who had pleaded guilty to similar crimes had received, pointed to the fact that he had not “accepted responsibility” and pleaded guilty as a reason he deserved a longer sentence.
This would be dangerous enough in a society where only obvious rights violations were illegal, because it would force people who had committed no crime to plead guilty. But to appreciate the danger of prosecutorial bullying in America, we need to recall the warnings of legal experts that, in the words of law professor Glenn Harlan Reynolds, “the proliferation of federal criminal statutes and regulations has reached the point that virtually every citizen, knowingly or not (usually not) is potentially at risk for prosecution.” Thus a prosecutor can pick basically whomever he wants and tell him to choose: Accept your guilt and a short spell in prison, or take your chances with the jury and risk a long sentence.
This is particularly dangerous for successful businessmen, who inhabit a world where even obscure accounting regulations can get enforced as criminal laws, and who are often viewed as suspect for their profession and their wealth. But it is dangerous for the rest of us, too.