Slightly less sinister hypothesis: aaronsw turned down a slap on the wrist plea bargain. The prosecutor charged the maximum because it is a waste of time to take a guy to federal court over a $20k fine and a year of probation.
You know that maximum about malice, incompetence, etc.? I'm not saying I _know_ for sure but it strikes me that most people think they are doing good in the world and I don't get why this prosecutor isn't getting the same benefit of doubt. Actually, I kind of do. Aaron was one of the community's favorites and to some degree that trumps truth-finding.
In that world, the question this government needs to
answer is why it was so necessary that Aaron Swartz be
labeled a “felon.” For in the 18 months of negotiations,
that was what he was not willing to accept, and so that
was the reason he was facing a million dollar trial in
April — his wealth bled dry, yet unable to appeal openly
to us for the financial help he needed to fund his
defense, at least without risking the ire of a district
court judge. And so as wrong and misguided and fucking sad
as this is, I get how the prospect of this fight,
defenseless, made it make sense to this brilliant but
troubled boy to end it.
The prosecutor isn't getting the "benefit of the doubt" because even a cursory look into her history shows that her office and attorneys (like Steve Heymann) have been railroading defendants and pushing spurious cases (google "Ortiz Russ Caswell" or "Ortiz UIGEA"). Carmen M. Ortiz is a bad person who abused her authority and the public trust; with Steve Heymann she pushed for 35 years in federal prison for downloading pdfs even when JSTOR refused to press charges. She cannot be voted out, and she will not listen to reason, so she must be forced to resign in disgrace. This is what prosecutors call "deterrence".
Sign the petition if you don't want Aaron's death to be in vain. He helped start the movement against SOPA for us, it is the least we can do for him.
From what I understand, he committed a felony and would most probably have been labelled a felon either way. I don't see this as a reason to tie up government resources in a trial whose outcome is basically a foregone conclusion. I do not endorse what he did being a felony. But that issue is only marginally relevant to the discussion of the prosecutor's behavior.
Federal criminal charges don't get thrown out. That is very rare. The way the laws are written the feds were going to win. Aaron was trying to do something that should be legal, but the feds were going to get their win. The problem is that what they report to the press and what they actually win on at court can vary widely, so Aaron was going to be ruined and he was going to serve hard time in prison. He shouldn't have killed himself though. He could have had a prosperous life after prison, but his public reputation was destroyed forever.
There's not always so much of a difference between those two things. If he did the things he was accused of doing that is a felony. There's little doubt that he did those things (the downloading and such) so he, in all likelihood, did commit a felony. Let's not focus too much on technicalities and semantics.
If you are accused of being a child molester, does it mean that we should all consider you guilty? But we should not quibble about such technicalities as you so blithely claim.
"Innocent until proven guilty". That's how the law works (and should)
If I had openly admitted the facts and several reliable parties had corroborated them? Feel free to call me a child molester before my conviction in that case. Don't throw me in jail before proving it, of course, but you needn't qualify every single thing you say with "alleged."
If the facts aren't pretty well established, then of course it is wise to be more judicious.
No one is denying that he did download those documents. What is mostly likely getting you downvoted is your assumption that his acts are felonies and that he would have been found guilty. That is debatable and why it would require a trial. That's why I would suggest not labeling someone a felon when no jury has had a chance to decide.
> your assumption that his acts are felonies and that he would have been found guilty
I understand that that is debatable. I don't view these things as foregone conclusions, only as highly likely outcomes. I'm not aware of any serious observers of the case who disagree, but if they exist it would be helpful to know about them.
No I disagree with your statement entirely. He was trying to download scientific and court documents that were paid for with taxpayer money that are supposed to be FREE to the public. The controlled distribution of these free documents to private companies is a scam by the US government to generate revenues for friends of the government. Yes the government was going to win their case because Aaron had to break the law in order to try and make these documents available. However, what he could have done, was brought action against the government and continued to violate the law in order to bring attention to it. But he was too young and too scared by the weight of the prosecutorial charges. They weren't going to get 30 years agains the poor kid for trying to right a government wrong. They were going to get house arrest and probation. Aaron should have stuck in there but having been falsely acused of a federal crime once in my life I know that the desire to commit suicide is strong.
Which means "maybe." The government should have to fight for these things, not have them handed a victory through sheer intimidation in the form of a plea bargain.
And the government was fully prepared to fight for them. So . . . the world is as it should be at least according to the parameters of your previous comment.
Also, "most probably" indicates a bias toward true, where maybe is more like 50-50. I did not say maybe, I said most probably. All degrees of likelihood are not the same for me, so please don't replace my words. If you did want to reword what I was saying, "not certainly" or "not definitely" would have been more appropriate.
I'm not rewording, I'm interpreting. "Maybe" covers the whole field of uncertainty, and unless you're going to show your work, vis a vis probability calculations (such as they may be), I'll just stick with that.
Regardless, you don't address my, "intimidation by plea bargain," angle, which speaks to their confidence. If they want to make an example of someone, which I hope we can agree was happening here, why even try to short circuit the process and evade establishing precedent? Even (or especially) for a careerist prosecutor's scoreboard, verdicts are more valuable than deals made.
I addressed it in another comment on this thread. Intimidation by plea bargain could equally be referred to as "No reason to plea bargain if the punishment upon guilty verdict isn't worse."
> make an example of someone
I think you're reading more into the motives of the prosecutor than is actually available from the evidence.
> evade establishing precedent
I don't think they need a case to establish precedent here. The law isn't perfectly clear, so there are gray areas, but my reading of it (as a non-lawyer, and corroborated by lawyerly readings in other threads) is that aaron's case was pretty deep in the "illegal" territory.
Not to be mean about it but it doesn't seem like you know what the word "felon" means. If you are never convicted of a felony, you are not a felon. There are real legal implications beyond your sentence if you are convicted as a felon. I think you should look into the information, possibly on Wikipedia regarding this; it is very relevant and the fact that you think it's not is confusing to me.
They seemed to have a pretty strong case against him, which means ending up with a felony label was pretty much a foregone conclusion if it went to trial.
A felony on your record is indeed a big deal. However, when you have the connections he did, and the reputation he did, a felony is not necessarily a "destroy your future" type big deal. Plenty of tech companies would have still jumped at the chance to hire him, for instance.
He was going to almost certainly end up with the felony tag regardless of whether or not he took the plea. Taking the plea gets him out and lets him get right to building his life back, and working on getting his record expunged.
Going to jail for, say, 10 years, not only delays all that by 10 years, but also makes it much harder. 10 years is a long time in the world of internet fame. Connections and reputations fade.
With respect, was there any problem with the felony besides his ego? I mean, I know people whose lifelong dream is to be a defense attorney. For those folks, a felony would be a huge problem since it would keep them from gaining admission to the bar.
Did Swartz have a similar issue? Or was he unable to bear the thought of being called names by that paragon of moral legitimacy known as the US government?
It also hurts employment (not just if you want to be a lawyer...) and even housing prospects. Being a felon very effectively makes you a second class citizen.
Even ignoring all of that, there is the factor of being forced to submit before an unjust power. The "felon" assignment did not represent just a label, but also total submission. Just summing this up as a problem with his "ego" may seem a good way to marginalize this consideration, but it is incredibly transparent.
Is the "moving internationally" issue a question of travel or permanent residency?
I get how a felony conviction might be a big deal for someone with a GED and no money and no connections. But Swartz had lots of connections and lots of money and was widely respected in professional circles. I really can't see any startup that he wanted to work for rejecting him over his felony conviction. And while some owners might not want to rent to people with violent felony records, I'm having trouble seeing many owners reject an accomplished man with money and recommendation letters from Larry Lessig and Cory Doctrow.
He had no money left, was already bankrupt after defending himself to this point...Besides, this is the wrong question - on what earth should it even be possible for a prosecutor to threaten thirty five years and a felony conviction for this sort of thing? That kind of sentence is for attempted murder, it is a few years short of life in prison. This was wrong, this was not right. Prosecutions like these mean that we lose our humanity.
Look, the bigger problem is spending 10 years in jail and coming back to a society that has called you a con artist in national newspapers after the DOJ gets to talk with the press. He went from being a respected and loved person who have a big career opportunity to being despised. I went through this and you know that it is almost impossible to find a girl to date after getting in this kind of trouble. They Google your name and say "Fraud" no way. He was facing 20 years in jail and feds do get sentences this long (probably would not have in this case) but Aaron was still a kid and doesn't understand that the government is not going to get 20 years on him. 20 years means no family, no children, probably no marriage, no work prospect, a life of shame. It's like having leprosy its awful.
You think being a felon is little more than being called a schoolyard name by the US government? Wow, this is a pretty childish understanding of the world. ... :(
Why not just drop the fucking case then? Jesus, how many millions of our tax dollars were spent doing our best to drive this kid to suicide?
JSTOR didn't want prosecution and arguably neither did MIT.
I can't stand these justifications that seem to make everyone a slave to the machine. Heck, you and I break hundreds of laws a day, maybe even a felony or two or three. Federal prosecutors can do whatever they want with us. We have no power over them. We can at least expect them to go after real crime with real victims instead of political activists.
If we lived by these "go by the letter of the law and prosecute everyone who breaks any law" ideals then literally everyone except newborns would be in prison.
You're conflating two very different things. This was no case of overzealous prosecution based on vague laws for the kind of activity that everyone does every day. Swartz purposefully accessed a protected computer network without permission, and purposefully copied a huge number of documents which he had no right to copy. He did all of these things willfully, with no defense that he was incapable of understanding the implications of his actions. It is disingenuous to say that breaking into MIT's network to download millions of documents illegally is no different than the kind of activity that you and I might do every day that "technically" violate various laws.
Now, maybe you think "breaking in" to a poorly protected network should not be a crime. Maybe you think mass copying of copyrighted materials should not be a crime. But if you take action like Swartz did to protest these laws, you are engaging in an act of civil disobedience and inviting prosecution. And sometimes that's justified, but being prosecuted is part and parcel of civil disobedience.
The rhetoric around this unfortunate incident borders on intellectually dishonest. Our democratically-elected Congress has passed laws, and under those laws breaking into a poorly-protected network isn't any less "hacking" than breaking into a poorly-protected house is trespassing. Those laws also say that scientists own the copyright to their papers, and can license them to distributors, even when their research is paid for with public grant dollars.
The prosecutor in this case pursued her case according to the law. Not some technical "letter of the law" definition of the law, but in response to exactly the kinds of actions the laws were designed to address. Our democratically-elected Congress chose to make those specific things that Swartz did illegal.
That doesn't mean that no one is on the hook. But it's not the relatively simple matter of stopping overzealous prosecution in one agency. The techie community has a far bigger task: convincing elected officials and those that vote for them that there are degrees to "hacking" and that publicly funded research should be freely available. That's the root of the issue here.
You're now the third lawyer I've seen on HN in the past couple days who has come on here and defended Ortiz with an argument that essentially claims that she did nothing wrong, that procedures were followed, that it's the system that's broken and needs fixing. That getting rid of Ortiz won't fix anything ("it's not the relatively simple matter of stopping overzealous prosecution in one agency".)
Those things may all be true, but what you don't seem to understand is that calls for firing Ortiz aren't about fixing the system. That's a bigger fight, a job that will take a long time. They're about punishment. With your narrow legalistic thinking, you seem to be incapable of recognizing that people have means of discovering the truth other than legal procedures. It's almost certain that Ortiz followed the letter of the law and the rules of criminal procedure, but it doesn't matter. She threatened a man, a man many here consider a hero, with 35 years in federal prison for allegedly committing a crime that, at most, prevented MIT from accessing JSTOR for a few days. People have decided, using means not codified in statute, that she has done a terrible thing and must be punished. It doesn't matter that the system is broken.
You lawyers keep saying that punishing Ortiz will have no consequence, because someone else will take her place. Well, people don't care. This is not about deterrence. That's such a laughably small part of it. Here are some other reasons for punishment, courtesy of Nietzsche
> punishment as a way of rendering someone harmless, as a prevention from further harm
People would certainly like to see Ortiz rendered harmless.
> punishment as isolation of some upset to an even balance in order to avert a wider outbreak of the disturbance
Who knows what some of the more unbalanced Anons will do
> punishment as festival, that is, as the violation and humiliation of some enemy one has finally thrown down
Yep
So you see it's not just about deterrence. The sad part, though, is that the one thing punishment will never achieve is to make Ortiz have a guilty conscience. She and people like you will never realize that she is a bad person and should feel bad.
It should tell you something that every lawyer on HN is defending Ortiz. It's because Ortiz isn't the problem--the system, and more specifically the laws, are the problem.
Nietzsche's justifications have no relevance here. Removing Ortiz wouldn't change anything because the next US Prosecutor would simply do the same thing given the same set of facts. Prosecutors overreach. They have to, given the way double jeopardy and the rest of the criminal justice system works.
We get that you and the other technerds are angry about what happened to Swartz, but if you don't redirect your misplaced anger where it properly belongs (i.e., the laws that gave rise to this situation in the first place), you won't accomplish anything, and then Swartz really will have died for nothing.
* The sad part, though, is that the one thing punishment will never achieve is to make Ortiz have a guilty conscience. She and people like you will never realize that she is a bad person and should feel bad.*
Lawyers have feelings, too. Ortiz almost certainly went into the prosecutor's office to do good, to see justice done and to protect the innocent. Do you really believe that Ortiz doesn't feel torn up that a young white collar defendant committed suicide because she pushed him too hard? Because if you really believe that, then you are the sociopath, not her. She will spend the rest of her career second guessing herself with every defendant--both the defendants like Swartz and the murderers and drug dealers that form the rest of her caseload.
I agree that the system is the problem. Never said it wasn't. Seeing Ortiz punished is not mutually exclusive with fixing the system. I was simply attempting to offer an explanation as to why people are calling for punishment given that it will not fix the system or prevent future Aaron's (as you've been so enthusiastically pointing out for the past two days). That's why Nietzsche is relevant - clearly deterrence is not the motive here, so what is? Do you have a better explanation?
As for your last paragraph, I'm happy to let my fellow technerds judge who is the sociopath here. I do believe that Ortiz has egregiously failed if her intent were to do good. I do not believe in the prima facie legitimacy of duly enacted laws in a representative democracy - especially one made up of such morally degraded citizens as our current United States.
...the system, and more specifically the laws, are the problem.
Not "more specifically", the right word is "including". And the system includes a lot of other broken things.
Such as the way that prosecutors habitually overreach. And no, they don't "have to" do that. They have discretion, but don't get ahead in their jobs unless they do overreach.
So yes, the laws need improvement. But so do prosecutors.
Lawyers have feelings, too. Ortiz almost certainly went into the prosecutor's office to do good, to see justice done and to protect the innocent.
I believe this to be true.
I also believe that Ortiz completely lost track of that, and has become something that she hopefully would have hated when she was younger. Unfortunately for Ortiz, I further believe that having her bear real consequences for having lost her moral compass and justifying her actions with "that's just my job" would be a very useful step on the path to fixing the broken prosecutorial culture that lead to Aaron's suicide.
She will spend the rest of her career second guessing herself with every defendant--both the defendants like Swartz and the murderers and drug dealers that form the rest of her caseload.
Yes, she likely will. Furthermore this is probably not the first tragedy she's been involved with, nor is it likely to be her last if she continues. However her very success in the broken system she's in is direct evidence that this incentive is not enough to get her - or other successful prosecutors - to behave in a humane fashion to those she opposes. Therefore the fact that she feels unhappy about the result is clearly insufficient deterrence.
For accuracy's sake, and someone correct me if I'm wrong, but you don't need to "break in" to MIT's network. It's entirely open, no? At least last I was there.
Swarz evaded MAC address bans by changing his MAC address. Also, at once point, WIFI guests needed to agree to terms on a captive portal IIRC; this may not have been the case when he was active though. Finally, no one had blanket permission to plug arbitrary devices into the network. Physical access has always required permission, and, IIRC, agreeing to terms.
Finally, just because a network is open does not mean you have permission to use it.
> Finally, just because a network is open does not mean you have permission to use it.
If it looks like a store and the door's unlocked their are unsettling consequence when it is considered appropriate to charge trespassing when someone comes in expecting to shop around.
If it is common understanding that MIT's net work is open and is used/viewed as a public resource with out MIT making it know otherwise then their are unsettling consequences if it is considered appropriate to charge a user with digital trespassing.
Now there have been several reports that the MIT network often unpoliced/regulated on purpose, and there are many other universities that have similar polices though most not as liberal as MIT's, so in this light I have not been able to see any arguments for digital trespassing as a strong argument.
it is common understanding that MIT's net work is open and is used/viewed as a public resource
IT IS NOT. I'm an MIT alum. MIT is crystal clear that their network is private and people can only use it while following their rules. Seriously, does http://ist.mit.edu/mitnet sound like a free for all network where anyone can do anything to you?
Rayiner's writings are some of the most informed writings on this topic that I've seen this week. They are all far more informed and intellectually honest than anything you've written.
Both you and Jacques would be happier if you avoided talking to each other for awhile. You have radically different perspectives and different investment in this particular tragedy and it's making your interactions go sideways.
It's good to have both of you on HN, so it seems pointless to cultivate a feud. A month from now, you both might find you enjoy having the other one around to engage with. Me and Jacques agree on approximately zero issues and I'm glad he's back.
Apropos nothing else, I agree that 'rayiner has been invaluable. The more people we have on HN that have taken crim law the better.
>Now, maybe you think "breaking in" to a poorly protected network should not be a crime.
No one is saying that. If he was hit with trespassing then it would be a different story. He was political target hit with the worst laws they could find that remotely applied to his case.
>The rhetoric around this unfortunate incident borders on intellectually dishonest.
The only dishonesty I'm seeing is from the aspie "law and order" types screaming "off with his head" because they can't fathom that our world is far from black and white.
>The prosecutor in this case pursued her case according to the law.
This is such a dishonest statement I'm not sure you really understand how the politics of prosecution work. Just the idea that Ortiz and Heymann had no choice but to hit Shwarz with these specific set of charges is absurd. Railroading happens, accept it. Your black and white simplistic worldview only exists in your head. Reality is messy.
> No one is saying that. If he was hit with trespassing then it would be a different story. He was political target hit with the worst laws they could find that remotely applied to his case.
He was hit with the hacking equivalent of trespassing. The point is that the fact that the network is unprotected or poorly protected doesn't make it any less "hacking" than the fact that property is unprotected or poorly protected makes it less "trespassing." What matters is whether Schwartz had permission to access the network for the kind of activity he engaged in, and he did not have such permission.
> No one is saying that. If he was hit with trespassing then it would be a different story. He was political target hit with the worst laws they could find that remotely applied to his case.
The aspies here are the techies who can't fathom why someone might characterize Schwartz's actions as "hacking into MIT's network to steal millions of scientific documents" and do so in good faith. It's aspies to not see how most people would see the situation that way, and rage at the prosecutor instead of acknowledging the larger task of changing people's views.
> Just the idea that Ortiz and Heymann had no choice but to hit Schwarz with these specific set of charges is absurd.
I didn't say she had no choice, I said her case was within the scope of the law. This is not a case where a prosecutor stretched obscure statute to railroad an innocent victim. This case was based on laws that proscribed exactly the kinds of activities the defendant undertook.
My point is that there are two very different kinds of "injustice" and people are confusing them.
In some cases, prosecutors charge defendants with completely tangentially-related laws in order to railroad them. But in this case the laws were on point. The real injustice is that the laws regarding "hacking" make no distinction between something like what Schartz did, and Russian mafia hacking into Bank of America's network.
Indeed. Perhaps it would clarify things if people who object to the Computer Fraud and Abuse Act could stand up and say "the CFAA is wrong and should be abolished; there should be no criminal penalty at all for unauthorized access to a computer system"?
At the least, there would still be criminal penalties for fraud, identity theft, misappropriation of trade secrets, blackmail, espionage, sabotage, etc.
When practically everything is a computer, having laws that specifically target computers seems unnecessary.
From what the trend has been, it looks like there are going to be 2 different lines of jurisprudence, one dealing with non digital works, actors and actions, vs one for the digital world.
It is increasingly clear that many situations online bear superficial similarity to real world analogues, and their edge cases make massive deviations from their r/l counterparts.
So laws will have to include cases for digital/computer based actions, at the very least as special cases.
If you can articulate a specific reason why e.g. "identity theft with a computer" requires different treatment than "identity theft" then we can discuss making an appropriate amendment to the laws against identity theft. But that is no excuse for the CFAA continuing to exist as written.
What I would be interested to hear is a valid argument for why "unauthorized access to a computer" (whatever that actually means) should be a felony or even a crime in cases when it doesn't occur in furtherance of any otherwise illegal act.
People talk about computers like they're property, but if you're accessing them then they're really like agents. Prohibiting "unauthorized access to a computer" isn't like prohibiting trespassing, it's like prohibiting talking to someone's agent without authorization. Which is silly. If your agent is stupid and someone convinces it to hop around on one foot or do some other such harmless thing, there is no reason for that to be illegal, you just train your agent to not do that if you don't want it to. If your agent is stupid and supplies foreign spies with copies of all your classified documents when they lie to it in the right way, anyone who does that is (or should be) guilty of espionage, and there is no utility in a separate law against "unauthorized access to an agent."
But there is great harm in prohibiting it, especially if the penalties are nontrivial, because depending on what "unauthorized" and "access" mean, we all arguably do it on a regular basis without even realizing it, and it makes us all subject to felony charges. So I'm waiting for someone to provide any good justification for why we shouldn't just repeal it.
Is it inconceivable that there's a middle ground to be found somewhere between "no criminal penalty at all" and "wildly, disproportionately harsh penalties"?
Perhaps we could call it "punishment that fits the crime"?
that property is unprotected or poorly protected makes it less "trespassing."
You know that booking someone for trespassing is pretty difficult, right? They have to be depriving you of the use of your property AND refuse to leave. So if I set up camp on your front lawn, and you ask me to leave, and I do, I was not trespassing. I don't think AS was depriving anyone of the use of their property here, was he? So the analogy does not really hold.
Do you approve of all actions throughout history performed under color of law? Your constant refrain to "Yes, these aren't terribly good laws, but they are the laws and that's enough" are so utterly unconvincing in light of this that I find it difficult to imagine your answer to the preceding question could possibly be anything other than yes, but before we proceed down that path I just thought I'd verify that assumption with you.
No honest person would call this the theft of millions of documents. This is akin to jumping the gate at a theme park and riding for free, a bunch of times. Nobody stole a rollercoaster. Harm was done but there's no need to reach for emotional terms to exaggerate it.
It'd take a lawyer to call this theft. I mean, by a word in a book it is but realistically it isn't.
For instance, I've had a forum post quoted word for word, and not as a reply. Of course I hadn't registered the copyright, but if I had I could have sued, as I would have been robbed - in your eyes. The same nothing would have happened but by virtue of a piece of paper you and yours would see it differently.
You talk about the closed mindset of hackernews but fail to see the emotionally isolated world inhabited by those who act as if morality flows from law instead of vice versa.
So again, no. I don't think an honest person would agree with that characterization of the events, at least not until a lawyer 'clarified' it for them.
Pro tip: if someone calls a hypothesis "slightly less sinister", he is probably not trying to justify it as a good thing.
What the OP is talking about is why prosecutors are the way they are, and suggesting the answer is more complicated than "these specific people are evil". This is worthy of discussion and it's not up to you to kill it by accusing the OP of defending a situation he is clearly not defending.
This is because the prosecuters are not human, they are preditors going after the weakest in society, it is much easier to score on their carreers than taking on the stronger.
Here in Europe we know very well where this all leads to, my ancestors have lived through it numerous times, the last time in the 30's and 40's.
Godwin's Law is designed to deter inappropriate comparisons to fascism/Nazism so as not to weaken or otherwise besmirch appropriate comparisons to fascism/Nazism. The United States government has been getting steadily and incrementally more fascistic for at least the past decade, and I would not be so quick to dismiss summarily a comparison between how the US government operates and how historic fascist governments have operated.
I'm sure "thinking persons" would have considered this, but just in case:
"Never forget".
Godwin's Law wants you to. Worse still his "law" encourages the mocking of those who want say if they think something is getting a bit Nazi. Which you have done by implying a disconnect between his comment, thinking persons, seriousness and understanding.
Why?
Perhaps so no one dares point it out if it looks like its happening again? Or something else? Who would want that, and why?
I'd prefer to be wrong, than get caught short. Citing this nonsense "law" is like getting people to shut up on so called "patriotic" grounds. It circumvents logic, reason and debate. Its silences people.
Look at it, it is Nazi in its self. Do and think as you are told.
Have to wonder, if we get more suicides of this type and people cite this case as a parallel too much, will that get a law too? Will people be told to shut up?
> Look at it, it is Nazi in its self. Do and think as you are told.
Wow, what a silly take on it. The law's admonition is to not make a genocide out of a molehill. If that's Nazi and conformist, so is telling children not to fucking cry wolf. Nazis were bad, we get it. Not every policy you dislike can usefully be equated with the murder of millions of Jews and the subjugation of the European continent.
Particularly, this case of a prosecutor prosecuting someone under a lawfully passed rule bears scarcely more relation to the Nazis than to unicorns. That is why people bring it up when people Godwin a thread.
And, to be clear, no one here is telling anyone to stop talking about whether this was a prosecutorial abuse, or whether the law should be changed, or whether the situation was just.
>Particularly, this case of a prosecutor prosecuting someone under a lawfully passed rule bears scarcely more relation to the Nazis than to unicorns.
There is a distinctly "just following orders" vibe to the argument that a prosecutor is right to prosecute someone completely regardless of any proportionality of the penalties to the alleged acts of the accused, just because the law allows it.
I don't think many of the pro-prosecution folks are arguing that she's right to prosecute solely because she can according to the law. That is just one factor, at least for me. I can also see several good arguments for the law's existence, and the way I model the prosecutor's mind, she can too and views this prosecution as necessary to uphold the rights of content owners.
This is a sentiment that I have shared for a while now, but I have never been able to express it so clearly. I am glad that I am not the only one deeply bothered by Godwin's "Law".
Asserting all members of a group of people are subhuman sure does sound like something that happened in Europe in the 30s and 40s. What point were you trying to make?
So either plead guilty to a felon and get a slap on the wrist, or due to some concept of 'wasting time' the prosecutor goes after the maximum of 30 years in jail?
I guess you are write, we should give the prosecutor the benefit of the doubt and be angry with the system that creates such a situation instead.
> So either plead guilty to a felon and get a slap on the wrist, or due to some concept of 'wasting time' the prosecutor goes after the maximum of 30 years in jail?
I don't know the right answer to this question. On the one hand, it does seem wrong to send someone to jail when you were willing to give them probation if they bargained with you. On the other hand, if the bargain deal and the worst case outcome of a trial are identical, then why would anyone ever bargain? And therefore the justice system becomes even more expensive to maintain, etc. So I'm of two minds.
It is also entirely possible that the prosecution had no intention of asking for the maximum, but when you consider a trial as a negotiation-game, revealing that is also not something that you can do.
I think the flaw is in thinking of the justice system as some kind of factory where "expensive" needs to be taken into account because we're working on volume.
We need to stop charging so many people with crimes. Widespread criminality can only have two causes: The first is that we've criminalized too much, and the solution is obvious, repeal the unnecessary laws. The second is that society is suffering from a systemic failure of societal institutions to make a normal life superior to a life of crime, but the solution in that case should never be to increase the rate of incarceration, the solution should be to repair the social fabric -- which is where the money we currently spend on mass incarceration should be going instead.
Once you stop having so many accused, you stop needing to worry about cost, and you can just prohibit plea bargains and afford to give everyone who is accused their day in court. In fact, making prosecutions more expensive is actually a feature, because it impedes the ability to create just the sort of mass imprisonment we have today.
I never thought about that but it does make sense: the prosecutors get professional advancement based on numbers, not the quality of cases.
We had a dinner party last night and everyone at the table thought that the US has serious citizen rights, etc. problems and the situation is getting worse.
And let's not even get started on the problems if you're not a citizen.
Trivial example: at the 29c3, an NSA whistleblower was complaining that the NSA was now eavesdropping on US citizens, oh the outrage! And explicitly listed the UN human rights conventions...forgetting that those same human rights conventions apply to the people he'd been eavesdropping on for the last 30-40 years with no problems whatsoever, the very people he was giving this presentation to.
A worthy lasting legacy would be for Mr. Swartz's story to shed an undeniable and transforming light upon the farce that our "adversarial" justice system has become.
It is all too seldom about "justice" and all too often about "career".
And... these prosecutors are public employees. Our employees. We cannot and should not divorce ourselves from their malicious malfeasance, when and as it occurs.
Nor can we nor should we divorce ourselves from the system that creates it.
Swartz's case gains publicity through his prominence. But similar oppression, often combined with a grinding and defining lack of opportunity, plays out thousands of times every day, on the streets and in the families of this country.
We can't make it perfect. But we should be trying a damned sight more to make it better. If we are sincere about this.
Check out Errol Morris' documentary The Thin Blue Line. It really makes evident the "career" climbers in the justice system and how they can spoil freedom for those who they target.
4 black teens in NY went to prison for 2 decades after a white woman mistakenly identified them as her attackers. Texas has executed several innocent men. The South had a history of lynching black men without a trial, and letting whites who murdered colored folk (black or otherwise) free. People of Japanese descent were forcibly interned during WWII and SCOTUS upheld internment.
The American justice system survived all of this, and you think that Mr. Swartz is a "transforming light"? I'm sorry, but compared to these other miscarriages of justice, the Swartz case isn't even a drop in a bucket.
First, you have the problem that legislators have to outdo themselves in their "tough on crime" poses, leading to ever more draconian laws and potential sentences. Don't see a trivial way out of that apart from changing the political climate, but it's probably the biggest factor. Without the risk of completely out-of-whack penalties, the leverage of prosecutors diminishes.
'"We now have an incredible concentration of power in the hands of prosecutors," said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that "in the wrong hands, the criminal justice system can be held hostage."'
Of course, the media could help by not hyping "ever increasing" criminality, which isn't true. Crime levels have been dropping not just in recent times, but pretty much throughout history, and are at historically unprecedented lows. Civic activism/awareness?
Adjust the incentives for prosecutors. Make these sorts of convictions and/or pleas less positive and/or drastically increase the disincentives for shenanigans that are found out.
EDIT: Have prosecutors, as public servants, be responsible for finding the truth, not for getting convictions. It is in the public's interest to get to the truth, not to convict or force guilty pleas of innocents.
How about expanding the right to council to equivalent resources? That way if the government spends a million trying to convict someone, they have to make an equivalent level of resources available to the defense.
Seems like a good idea but I can imagine government accounting gimmicks.
I'm very curious about something that I read in Lessig's post about not being able to reach out to others for funds without incurring the ire of the District Court Judge. I wonder what that is about?
The effect of this would be the government would be prosecuting either cheapest cases (read: defendants most likely to be intimidated, confused and railroaded with minimal effort, including weak, mentally unstable, drug addicts, etc.) or very high-profile cases on which careers are made. Other ones would be completely neglected due to high costs and low cost/benefit ratio, or delegated to the cheapest personnel government service can find.
Since pleading out is much less expensive that jury trial, the current trend of forcing defendant to plead out will become overwhelming - basically, a mere fact jury trial would mean complete failure for a prosecutor ("you let that sucker have jury trial and cost our department whole next year budget?! good luck getting promotion anytime this century!"). They would behave accordingly - given that by now we have 5000 federal crimes and more will be inevitably created just for this purpose, standard scenario would be "we got you for 95 counts of federal crimes, summarily you could get 280 years in jail. Even if jury throws out 90% of them, you are still in for 30 years. How about accepting this one 2 year charge on the cheap and we are done here and now?"
Also, government wouldn't usually spend a million. Locking down someone's assets costs nothing do the government. Setting excessive bail and denying him opportunities to defend himself is also very cheap. So this measure would create incentive to concentrate on such methods of winning the case - why bother with expensive forensics if you can bankrupt him with asset forfeiture and he'd have no money to pay for a lawyer that would ask questions requiring expensive forensics?
It's not the question of money, unfortunately. It's the question of vastly asymmetric power.
It would just be a factor of two in costs. Surely you're exaggerating its effect.
Additionally I would propose that in some random subset of accepted plea bargains, a trial is forced and if the plea is consistently unreasonably far from the plea, there should be some negative consequence for the prosecutor.
It's all about incentives and incentives not always work arithmetically. Also note, that symmetrical funding will mean costs inflation - if defendant gets a million, prosecutor probably would have to spend more on prosecution, since now he has to overcome a million-dollar lawyers. So those cases that get to trial would be much more than twice expensive as before - because while prosecutors have huge resources behind them, they rarely use all of them, unless the other side has equally huge resources. If you force resource match, every case would require all huge resources. And this means incentive to not let that happen would increase dramatically, because the difference is between quick case close in couple of days and prolonged attrition battle with complete involvement of all resources.
>>>> Additionally I would propose that in some random subset of accepted plea bargains, a trial is forced
So, let's say the defendant pleads out and the jury can not convict him because of whatever stupid thing. How it makes prosecutor necessarily bad? Remember in the recent case of Blagoyevich outright selling senate seat the jury could not convict him because one of the jurors thought it's just politics as usual and there's nothing criminal was going on? How something like that makes prosecutor bad? Juries are never certain. It would be hugely unfair and would definitely drive good ones from the job, because good people are usually sensitive to unfairness. Bad people would stay and manipulate the system so that their cases either don't get randomly selected somehow or get to a sympathetic judge, or some such.
> Also note, that symmetrical funding will mean costs inflation - if defendant gets a million, prosecutor probably would have to spend more on prosecution, since now he has to overcome a million-dollar lawyers.
I don't see how that makes sense.. If the prosecutor completely relies on having far more resources than the defendant, then surely the case is weak enough to lose?
It would definitely mean that prosecutors give up on more of their weaker cases.
> So, let's say the defendant pleads out and the jury can not convict him because of whatever stupid thing. How it makes prosecutor necessarily bad?
Remove draconian sentences from copyright criminal law and computer hacking law.
This is difficult because the copyright lobby has some of the finest politicians money can buy, and because both legislators and the general public don't understand computers and are firmly convinced that anyone who understands computers has godlike powers.
Require federally funded research to be public domain.
This might actually be politically feasible. On or near the front page of this writing is a White House petition to do it.
At root this is a philosophical problem. The professional philosophers have created a disarray in the field of values, claiming that they are subjective and arbitrary, and that's resulted in the inability of people to rally around common, objective values of right and wrong. And when you say something like this, you generally just get what these philosophers have said repeated back to you, and some weak-kneed alternative to saying "this is right, that is wrong", which is precisely why we are where we are.
Is that actually, causally, the reason for the U.S.'s rather harsh justice system? I mean, postmodernism is not exactly popular in the US. Are law-and-order populist politicians pushing "tough on crime" agendas and long sentences all secretly fans of French philosophers? If anything, the problem is that they are too sure of their own values, and willing to enforce them with imprisonment.
So? You can't claim certainty is per se evil without lapsing into hypocritical contradiction. Those who zealously preach anti-certainty are hypocrites, intrinsically.
And this is different from the status quo how? How does running to the same group of "experts" who have engineered our social systems help? Note how conditioned the response is: you see a problem with the system, you're conditioned to trust in the system (and its approved representatives) to give you answers.
You're part of the problem of course. You and everyone like you. By rejecting philosophy you reject ethics and therefore any possible means of addressing these systematic problems.
I am of course in the minority, but it's not the minority who's created these major systemic problems. We try to point them out and are ignored (and here, downvoted), and you bumbling fools keep doing things that wreck civilization. Inadvertently of course. But good intentions count for zero, you still bear partial responsibility for widespread injustice.
The problem lies in Democracy, it is not for nothing that it is called the least worst ruling system.
The difference between most democracies and dictatorships is that a dictatorship is despotism by minority and most democracies despotism by majority, not often are democracies systems of fairness.
No, it's not with democracy, it's with the values of the populace. If you have a predominately good people, then many political systems can work; if you have a predominately duped and corrupt people, no system can work.
If you think that the problem with the U.S. is that everyone is hopelessly enamored with Rorty or other postmodernists, then, I think maybe you are out of touch with "reality" just a little bit. :) I don't think the NRA is going to start quoting Derrida any time soon.
What are you talking about? I have training in philosophy but I have no idea what you're talking about; I'm not sure what professional philosophers have to do with this situation at all.
So you're serious? You think the US laws were written by postmodernists and that most US citizens are relativists? Really? This seems like a weird version of a tin foil hat conspiracy theory.
So, you're a philosophy buff, but you can't help yourself regarding ignorant presumption about another person's thoughts.
I don't think philosophy has taught you much about being careful with ideas. That too is ironic. I shouldn't have to disclaim your ignorant presumptions every time you open your ignorant, presumptuous mouth.
Also, I asked you a basic question. I asked you what the purpose of philosophy was. Why are you evading the question?
Though the article brings up an interesting point for consideration, I found it relying more on inflammatory statements than anything else.
"The Justice Department was bagging obscenity law trophies by going after the poor, the suicidal, the insane, the cognitively impaired— because that's the way they rack up numbers and status. That's the way their fuel their careers at the Justice Department— not by taking on constitutional issues, or injustice, or fat cats who believe they're above the law."
I'd be interested in seeing numbers on whether defendants convicted of obscenity charges really do have a higher incidence rate of poverty, mental illness, etc. to back the author up.
The presence of a quota system that requires that the government bring a certain number of cases and provides bonuses and rewards connected to "bringing more cases" means that honorable and honest prosecutors fall behind and cannot compete and dirty and heartless prosecutors are able to meet their goals and get ahead. It is not possible to fight the federal government, only a man of enormous strength and enormous balls can successfully do this. Most capitulate, the others lose because the government burden of proof is a joke.
Why is this on the front page? This is barely even about Aaron Schwartz -- he wasn't disabled, friendless, or prone to drooling for example. Less of these kinds of posts, please.
That said, I'm glad it was here if only to read jamesagilar's pointing out that "aaronsw turned down a slap on the wrist plea bargain". Thanks James!
It is on the front page because this is happening in the USA every day, every hour. But we usually hear about it only when somebody high-profile enough is hurt by the criminal prosecution machine. But make no mistake of thinking the same machine doesn't hurt people 24/7 - we just don't hear about it often. Maybe if we did, we could get some way to fix it or at least make it less cruel and inhumane. Most of the readers here, I presume, are lucky enough to have very small chance of being pulled into the criminal prosecution machine unless they do something out of the ordinary - like Aaron Swartz did. But it still exists right next to us and we better not forget about it.
I agree the linked article isn't really about Swartz, but I think it's a reasonable opportunity to look at how U.S. federal prosecution works/fails in general.
Did you read TFA? Not making any judgment about the claim: What she suggests is that he was an easy victim for the plea bargain game because of his known problems with depression.
A felony isn't a slap on the wrist. It can have a long lasting affect on your life, closing up whole career opportunities and making travel a pain in the ass.
You know that maximum about malice, incompetence, etc.? I'm not saying I _know_ for sure but it strikes me that most people think they are doing good in the world and I don't get why this prosecutor isn't getting the same benefit of doubt. Actually, I kind of do. Aaron was one of the community's favorites and to some degree that trumps truth-finding.