Overcriminalization and the Tragic Case of Aaron Swartz

Originally published at National Review by Ammon Simon | 1/15/13

On Friday, 26-year-old internet activist Aaron Swartz—who was facing 13 federal charges, along with a potential $1 million fine and 35 years in prison—committed suicide. Federal prosecutors had charged Swartz with using an unlocked MIT computer closet to download, for free, articles from subscription-based academic service JSTOR. Unfortunately, this tragedy is one more example of the increasing problem of over-criminalization. 

I don’t have the technical expertise to tell you exactly what Swartz did or if it violated federal law. Swartz’s expert witness, Alex Stamos, says that it did not, while Professor Orin Kerr disagrees

However, assuming Swartz did break the law, did he really deserve to face 35 years in federal prison for his actions? ThinkProgress Justice (not usually my main source for legal news) lists lesser-punished federal crimes, including (1) bank robbery, (2) selling child pornography, (3) knowingly spreading AIDS, (4) selling slaves, (5) genocidal eugenics, and (6) helping al-Qaeda develop a nuclear weapon. 

In Jacksonville, gang members that “committed a series of violent felonies and crimes, including an extortion that left one man nearly dead; the choking of a young woman until she passed out; armed bank robberies; armed home invasions; daily cocaine and opiate sales; and theft of thousands of dollars’ worth of merchandise from local stores,” received a lesser federal sentence of 30 years in prison.

As Jonathan Blank argues:

Mr. Swartz may have done wrong by JSTOR, and perhaps he even deserved to pay a fine for his misdeeds, but a two year federal investigation and the threat of putting a young man in prison for the rest of his life was a despicable and wasteful effort by the federal government.  Unchecked and vindictive prosecutions ruin lives..

Lest there be any doubt about prosecutor’s overreach, even JSTOR settled their civil claims against him in June 2011, and released the following statement after Swartz’s death:

We have had inquiries about JSTOR’s view of this sad event given the charges against Aaron and the trial scheduled for April. The case is one that we ourselves had regretted being drawn into from the outset, since JSTOR’s mission is to foster widespread access to the world’s body of scholarly knowledge. At the same time, as one of the largest archives of scholarly literature in the world, we must be careful stewards of the information entrusted to us by the owners and creators of that content. To that end, Aaron returned the data he had in his possession and JSTOR settled any civil claims we might have had against him in June 2011.

 Ted Frank has a useful compilation of links on this story, along with other examples of over-criminalization