Emphasis added. Orin Kerr has much more
A lot of people have objected to the aggressive tactics used by the prosecution. The prosecution took several steps that have drawn a lot of criticism. First, they took several steps to pressure Swartz to plead guilty. They said that if Swartz went to trial and was convicted, they would argue at sentencing for a 7-year punishment. They filed a superseding indictment that added charges — which actually wouldn’t change the punishment at trial if the jury convicted, but instead created a risk that the jury would falsely think that they were “splitting the difference” if they convicted on some counts but not others. Second, they wouldn’t agree to a guilty plea without jail time and wouldn’t drop the felony charges. Swartz was in a bind: He could take the 4 month sentence and have a felony conviction through a plea, or he could go to trial and risk getting a more serious sentence. A lot of people think these tactics were out of line, and they want the prosecutors to be punished for their apparent overreaching. There’s no question that the prosecutors had created a difficult and intimidating picture for Swartz as he faced trial.
If these tactics are out of line, though, I don’t think it’s appropriate to blame the two prosecutors who happened to bring this case. What the prosecutors did here was what federal prosecutors often do. Congress has given the DOJ very broad powers. The law is vast and punitive — in my view, here too punitive (more on that in a minute). Federal criminal law gives prosecutors a lot of tools to pressure defendants to plead guilty, and prosecutors often exercise those tools. Once investigators put a lot of time into investigating a case necessary to make the arrest and gather the evidence, they’re going to want the charges to be serious; prosecutors may be reluctant to spend all that time only to get a misdemeanor plea out of all that effort. As a result, they’re likely to insist on felony liability instead of misdemeanor liability. In some ways, it could be worse. And at least here, the facts were not much in dispute; the charges were based on a fair reading of the law; and there wasn’t a serious suppression issue (a motion to suppress was filed, but it was plainly meritless on multiple independent grounds). In a lot of cases, prosecutors place these kinds of pressure on defendants when those circumstances aren’t the case.
But the broader point is that if we think agressive prosecution tactics such as this are improper, we shouldn’t be focused just on the Aaron Swartz case. Rather, we should be shining a light on the federal criminal system in its entirety. These sorts of tactics have been going on for years, without many people paying attention. If we don’t want a world in which prosecutors have these powers, we shouldn’t just object when the defendant in the crosshairs is a genius who went to Stanford, hangs out with Larry Lessig, and is represented by the extremely expensive lawyers at Keker & Van Nest. We should object just as much — or even more — when the defendant is poor, unknown, and unconnected to the powerful. To do otherwise sends an extremely troubling message to prosecutors that they need to be extra sensitive when considering charges against defendants with connections. We have too much of a two-tiered justice system already, I think. So blame the system and aim to reform the system; don’t think that this was just two or three prosecutors that were doing something unusual. It wasn’t.