SYNDICATED COLUMN: Murder by Prosecutor

Time to Roll Back Excessive Prison Sentences

If you’re looking for sympathy, it helps to be white, male and media-savvy. Throw in charm and brains—especially if your smarts tend toward the tech geek variety—and your online petitions will soon collect more petitions than campaigns against kitten cancer.

These advantages weren’t enough to save Aaron Swartz, a 26-year-old “technology wunderkind” who hanged himself in his Brooklyn apartment on January 11. But they did elevate his suicide from that of a mere “data crusader,” as The New York Times put it, to “a cause” driven by millennial “information wants to be free” bloggers and sympathetic writers (whose corporate media overlords would go broke if people like Swartz got their way).

Swartz, who helped invent RSS feeds as a teenager and cofounded the link-posting social networking site Reddit, was a militant believer in online libertarianism, the idea that everything—data, cultural products like books and movies, news—ought to be available online for free. Sometimes he hacked into databases of copyrighted material—to make a point, not a profit. Though Swartz reportedly battled depression, the trigger that pushed him to string himself up was apparently his 2011 arrest for breaking into M.I.T.’s computer system.

Swartz set up a laptop in a utility closet and downloaded 4.8 million scholarly papers from a database called JSTOR. He intended to post them online to protest the service’s 10 cent per page fee because he felt knowledge should be available to everyone. For free.

JSTOR declined to prosecute, but M.I.T. was weasely, so a federal prosecutor, U.S. Attorney Carmen Ortiz of Boston, filed charges. “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away,” she told the media at the time.

Basically, I agree. As someone who earns a living by selling rights to reprint copyrighted intellectual property, I’ve seen the move from print to digital slash my income while disseminating my work more widely than ever. Info wants to be free is fine in theory, but then who pays writers, cartoonists, authors and musicians?

I also have a problem with the selective sympathy at play here. Where are the outraged blog posts and front-page New York Times pieces personalizing the deaths of Pakistanis murdered by U.S. drone strikes? Where’s the soul-searching and calls for payback against the officials who keep 166 innocent men locked up in Guantánamo? What if Swartz were black and rude and stealing digitized movies?

But what matters is the big picture. There is no doubt that, in the broader sense, Swartz’s suicide was, in his family’s words, “the product of a criminal justice system rife with intimidation and prosecutorial overreach”—a system that ought to be changed for everyone, not just loveable Ivy League nerds.

Swartz faced up to 35 years in prison and millions of dollars in fines. The charges were wire fraud, computer fraud and unlawfully obtaining information from a protected computer.

Thirty-five years! For stealing data!

The average rapist serves between five and six years.

The average first-degree murderer does 16.

And no one seriously thinks Swartz was trying to make money—as in, you know, commit fraud.

No wonder people are comparing DA Ortiz to Javert, the heartless and relentless prosecutor in Victor Hugo’s “Les Misérables.”

As Swartz’s lawyer no doubt told him, larding on charges is standard prosecutorial practice in everything from traffic stops to genocide. The idea is to give the DA some items to give away during plea negotiations. For defendants, however, this practice amounts to legal state terrorism. It can push psychologically delicate souls like Swartz over the edge. It should stop.

It also undermines respect for the law. As a young man I got arrested (and, thanks to a canny street lawyer, off the hook) for, essentially, riding in the same car as a pothead. Among the charges: “Not driving with a valid Massachusetts drivers license.” (Mine was from New York.) “Don’t worry,” the cop helpfully informed me, “they’ll drop that.” So why put it on? Neither the legalistic BS nor the missing cash from my wallet when I got out of jail increased my admiration for this morally bankrupt system.

The really big issue, however, is sentencing. The Times’ Noam Cohen says “perhaps a punishment for trespassing would have been warranted.” Whatever the charge, no one should go to prison for any crime that causes no physical harm to a human being or animal.

Something about computer hackers makes courts go nuts. The U.S. leader of the LulzSec hacking group was threatened with a 124-year sentence. No doubt, “Hollywood Hacker” Christopher Chaney, who hacked into the email accounts of Scarlett Johansson and Christina Aguilera and stole nude photos of the stars so he could post them online, is a creep. Big time. But 10 years in prison, as a federal judge in Los Angeles sentenced him? Insanely excessive. Community service, sure. A fine, no problem. Parole restrictions, on his Internet use for example, make sense.

Sentences issued by American courts are wayyyy too long, which is why the U.S. has more people behind bars in toto and per capita than any other country. Even the toughest tough-on-crime SOB would shake his head at the 45-year sentence handed to a purse snatcher in Texas last year. But even “typical” sentences are excessive.

I won’t deny feeling relieved when the burglar who broke into my Manhattan apartment went away for eight years—it wasn’t his first time at the rodeo—but if you think about it objectively, it’s a ridiculous sentence. A month or two is plenty long. (Ask anyone who has done time.)

You know what would make me feel safe? A rehabilitation program that educated and provided jobs for guys like my burglar. Whether his term was too long or just right, those eight years came to an end—and he wound up back on the street, less employable and more corrupted than before. And don’t get me started about prison conditions.

A serious national discussion about out-of-control prosecutors and crazy long sentences is long overdue. I hope Aaron Swartz’s death marks a turning point.

(Ted Rall is the author of “The Book of Obama: How We Went From Hope and Change to the Age of Revolt.” His website is tedrall.com.)

COPYRIGHT 2013 TED RALL

Share on FacebookTweet about this on TwitterShare on Google+Share on RedditDigg thisShare on StumbleUponEmail this to someone

15 thoughts on “SYNDICATED COLUMN: Murder by Prosecutor

  1. Alex,

    We already have a titanic backlog. The notion that such a backlog would stop prosecutors from doing anything is titanic bullshit, I’m afraid. I’ve seen defendants languish in prison for over a year, due to continuances, when the charges against them literally weren’t strong enough to survive summary judgement. Why? Because the prosecutors fucking can.

    Hell, if someone files false charges against you, admits as much, and then leaves the state, never to return, the state can still go forward with a trial while you cool your heels in prison — for, again, a fucking year. At which point the prosecutor will say “oops, no complaining witness!” and you’re bounced on the street with your life destroyed and no legal recourse. Oh, and that’s after any continuances the prosecutor can get for attempting to secure his witness.

    Oh, and speaking of foreclosures downthread: now you can be put in prison after the bank takes your house because the bank evicts you but refuses to take title, meaning you have to pay the bank (and taxes) but get kicked out of your (padlocked) home. . . and the prison will be a surprise because the bank doesn’t tell you that you’re on the hook for federal debt until the cops come knocking: http://www.youtube.com/watch?v=ak0L-n3e7vo&list=UU1yBKRuGpC1tSM73A0ZjYjQ&index=3

    Not only does HBSC get away with one of the largest thefts in human history, we now see that the corporate veil can not only protect its beneficiaries, it can reflect the liability for entire criminal enterprises back onto the victims.

  2. You are basically right, Susan, that is what they wanted to accuse Johnny Walker Lindh of, but of course they really couldn’t. At the time that he joined the Taliban United States was not at war with either the Taliban or Afghanistan. Therefore there is absolutely no legal justification whatsoever to charge him with any crime at all. Certainly not treason. By that standard, the United States government should be guilty of treason since they were funneling tens of millions of dollars into the Taliban the very same year that Johnny Walker Lindh was serving as a soldier in the Civil War there against the Northern Alliance.

    I was not impressed with the quality of legal representation that he received. I think he should have insisted upon the trial, and made his case to the American people – that he had nothing against the American people, never shot a rifle in the direction of an American soldier, and nearly got caught up in events that had nothing to do with him half a world away that eventually came to bite him in the ass. That would have set him up, even had he been convicted, for a potential future presidential pardon or commutation. The American people really needed to hear from him. Trying to negotiate within the system got him 19 1/2 years in prison.

  3. Of course, Charles Schulz died back in 2000, so what we are really talking about is a licensing empire that goes back to the 1960s and has continued by his estate.

    More to the point, there is a whole coterie of web cartoonists who claim to make a lot of money that is just simply impossible based on what they say. We have people who claim to get 25 million unique visitors to read comic strips about extremely narrow cast topics that are written very poorly and drawn terribly. Somehow, I just don’t believe it. Given the economics of Web advertising rates, it is impossible that they are making a lot of money. In terms of merchandise, if these guys were selling the numbers of T-shirts and mugs that they claim to be, you wouldn’t be able to walk around Brooklyn or Portland without running into 1 million guys sipping coffee out of web comic merchandised and licensed mugs while wearing web comic merchandised and licensed T-shirts.

    What we really have is a sort of Amway model, where a couple of cartoonists claim to make all sorts of money and then sell books to other aspiring web cartoonists and give talks at conferences that aspiring web cartoonists pay a lot of money to attend and receive big speaking fees. No one ever makes money selling Amway products to actual people, they make money selling Amway products to people who think that they will be able to sell to actual people.

  4. alex, I am willing to bet hard earned cash that many licensed Peanuts products are produced in China. I cannot find proof (well two minutes of Google on company time is not truly exhaustive research) but I am pretty sure it is the case.

  5. Speaking of prosecutors. They have way, WAY too much immunity. Harry Connick, Sr is responsible for an innocent man rotting in prison for 18 years, yet he is immune from the consequences of this. Bottom line: withholding evidence by a prosecutor should be illegal and with consequences.

  6. @Ted

    The proper thing to do in the Lindh case would be to try him for treason, but the Powers That Be are afraid to set a precedent lest they be tried for treason someday as well. So they set up this legal fiction that American law applies to an American even when in a different country.

  7. Ted,

    “No one in the history of cartooning has ever made the kind of income that they are talking about simply by selling merchandise directly to their fans.”

    Well, maybe Charles Schulz. But he had to have a juggernaut to do it.

    One thing I just realized. Of the cartoonists who do make a pile of money, I never hear stories about them being complete and utter dicks. Charles Schulz was, by all accounts, an extraordinarily down-to-earth human being. They never get caught ruining thousands of lives when they draw a factory closing because that strip would be more profitable than a strip that keeps the factory in the U.S.

  8. An additional factor in our penal system is that politicians like to look tough on crime come election time and since they are always running for office and not running the country, city, state, etc., it is easy to create more laws and mandatory sentencing that make them look like they are creating a solution to the problem.

    This along with slashing education and opportunities for those who turn to a life of crime because they don’t see any other choice coupled with the mostly illegal drugs used to escape the pain of their existence which adds years to their prison sentences when they are caught and incarcerated sending them along the path to no where.

    Basically, this country is fucked because we don’t have leaders who are willing to make the politically hard choices and help the “little people” because they are afraid that they will lose the big moneyed fat-cats.

    The Revolution is coming.

  9. There is also an excellent point about how there isn’t enough capacity to handle all of the trials that people deserve to get in order to respect their rights. I read somewhere that somewhere in the order of over 90% of defendants end up pleading out due to the threats of prosecutors. But the results are heinous. I can never get over the case of Johnny Walker Lindh, the American Taliban, received 19 1/2 years in a federal penitentiary for the illegal possession of an AK-47, in Afghanistan – not the United States.

  10. Alex, obviously he isn’t here to tell us although I wouldn’t at all be surprised if there is a rather detailed suicide note of some sort. Obviously people who deal with depression can be set off by all manner of setback and some people commit suicide without a specific tipping point, but it doesn’t take much supposition to imagine the stress caused by facing 35 years in prison and millions of dollars in fines. Yes, you are right, he could have brought appeals and he could have become a cause célèbre. But according to his friends, he confided that he felt quite alone and beleaguered. I think it’s pretty fair to say that an overzealous prosecutor caused this particular suicide to happen at this particular time.

  11. rikster: Under Clinton, a man was ordered to pay the woman who said he’d fathered her child $500 out of his $700 a month salary. Then he was ordered to pay a second woman $500 who made the same claim, which was impossible. Then a third woman named him as father, and he was ordered gaoled for life, but required to go to his job with an ankle bracelet. He has to pay the full cost of his incarceration, and what’s left over is split three ways, and he won’t be fathering any more children.

    Non-violent offenders in my home town are required to work on the local farms, thereby eliminating the temptation for farmers to hire illegal immigrants. They must be paid the usual salary, and that covers the cost of their incarceration and the profit for the private prisons. It’s a great system. Ideally, we can go back to the halcyon days of slaves and serfs. And it was all designed and developed by the president who repealed Glass-Steagal and made the sub-prime crisis possible, making many more of those heinous borrowers (promised low, low payments, but promises were meant to be broken) legally guilty of fraud and tax evasion (while the people who convinced them to take misrepresented loans have their bonuses guaranteed by the government). So now we have many more non-violent candidates for prison who can be put to work to pay the private prisons the full cost of their incarceration plus profit. It’s a great system, and only in America, the greatest country that ever was, is, or will be!

    And Mr Rall is complaining that, as an old codger, he can’t figure out how to make a buck in this Brave, New World. The London Economist sent me an article that says the young cartoonists are earning six figure incomes. They still can’t sell their IP, but they sell T-shirts, stuffed animals, mousepads, & etc.

    http://www.economist.com/news/christmas-specials/21568586-internet-has-unleashed-burst-cartooning-creativity-triumph-nerds?fsrc=nlw|pub|1-9-2013|4566883|34877102|

    • Michael, Man, that economist article is so full of shit it is simply amazing. They didn’t bother to verify the lies and brazen falsehoods asserted by these web entrepreneurs. No one in the history of cartooning has ever made the kind of income that they are talking about simply by selling merchandise directly to their fans. This is a classic case of faking it to make it.

  12. The United States has the largest percentage of its own populace locked up or incarcerated in some way – no other country in the world keeps so many of it own people locked up, especially the number of them inside for victimless crimes, and our jails are known to be cesspools of violence and gangs.
    A famous person, I forget who at the moment, once said that you could judge the civility of a society by the way it treated its transgressors, and if so, we have to admit that we seem to be able to act in a very uncivilized, shitty and stupid way. Plus, it is extremely expensive to keep people in jails for long persiods of time – who do you think pays for it?

  13. Ted,

    I think it’s a pretty slender reed that puts the blame for Swartz’s suicide on the legal issue he faced, delicate-souled or not. He hadn’t even been convicted yet. Even if convicted, he could have brought appeals — for which he’d have been out on bail — that would have taken years to get through. Almost certainly the political situation would have shifted at some point to one that would have been much more favorable for him.

    Yes, the system is screwed up. Yes, the sorts of sentences people draw — and the methods used to get them — are bizarrely wrong. You could fix all that with one change in the law: “Any defendant who declines a trial receives a ten percent surcharge to all jail time and all fines.” Go to trial, and get 10 years and a $1,000 fine. Decline a trial, get 11 years and an $1,100 fine.

    The Achilles’ Heel of the system is that too many people are arrested to give them all trials were they to demand them. So the prosecutors throw on bullshit charges. If going to trial was a prisoner’s less-awful option, almost all of them would take the trial. The system would grind to a halt and almost all of them would go home free because there simply aren’t enough jurors, enough lawyers, etc. to give them all speedy trials. You couldn’t even get them arraigned in time. The backlog would be enormous. So, the cops would have to stop arresting people for bullshit nothing cases. Why? Because a courtroom slot would be a rare and valuable thing, not something to waste on a nothing case.

Leave a Reply