More NSA

By Robert H. 


So this guy wrote an article observing, among other things, that 1. Federal prosecutors routinely pressure criminals to plead guilty, 2. Prison conditions in America can be brutal, and 3. Since the 70's, the courts have reigned in people's ability to avoid criminal conviction due to police misconduct during the investigation of their crime. So that's all true.

What's weird is that he presents these entirely as problems facing protestors and whistle blowers
 who leak classified documents.  And I've been seeing a lot of that lately, ever since the Aaron Swartz tragedy.

To be clear, every criminal defendant in America is pressured to plead guilty by the prosecution, many face terrible prison conditions (overcrowding, sexual assault by guards, long term solitary confinement, etc), and the courts have made exceptions to the exclusionary rule that affect all of us.  If those things mean Edward Snowden can't get a fair trial in America, no one can.  And if you only speak out when the criminals you like face abuses, don't be surprised if abuses become the norm.

As a total aside, plea bargaining exists as a cost cutting measure because trials are expensive (and it works, 90+ percent of criminal cases are resolved before trial).  Anyone who says "prosecutors pressuring defendents to plea bargain are wrong and defendants should be able to go to trial without fear of harsher punishment" needs to follow that sentence with "and here is my plan to fund a vast expansion in the numbers of prosecutors, judges, support staff, and courthouses, so that we will be able to timely try the vast number of trials I'm creating."  Or maybe "and here is my plan to cut down on the numbers of citizens we arrest and accuse of crimes."  Whatevs, just please be aware of why prosecutors do it and the pressures it will cause if they can't.

The Swartz is With You (Provided You are a Lenient Prosecutor)

Aaron Swartz was a smart computer programmer/activist who sneakily downloaded millions of copyrighted articles off of JSTOR, an academic search engine, to protest academic articles being placed behind pay-walls (and possibly to distribute them via file sharing).  JSTOR said it didn't mind, but he was nevertheless prosecuted very severely by the Massachusetts US attorney, and ultimately killed himself under the strain of the lawsuit (plus the strain of mental illness, obviously).  You can read about it, plus the political fallout from it, here.

Orin Kerr has a post that, among other things, provides justification forthe prosecutors wanting to punish Swartz harshly. It can be summed up in two steps: 1. People who break duly passed democratic laws in an attempt to undermine or change them should be punished, especially when they attempt to change them through non-democratic means 2. The correct measure of punishment is specific deterrence -- what it takes to keep them from doing it again.  To use his own words:

We live in a democracy.   We might not like all the rules in a democracy, but the way to change those rules is through democratic change.  Swartz could have tried to be punished under the law to bring attention to the law in the hope of changing it through the democratic process.  But instead he had something anti-democratic in mind [IE, to circumvent JSTOR's copyrights by illegally distributing the articles]. I think it’s pretty clear that in a democratic system, that kind of anti-democratic cause is something that we should disfavor.  You can break the law to draw punishment, but the ultimate goal of traditional civil disobedience is achieving change through the legal means of democracy.  Swartz had something else in mind, it seems;  changing the law de facto by his unilateral action. Given the importance of the difference, a punishment that was the minimum sufficient to persuade Swartz to follow the law in the future seems appropriate.

This makes no sense to me.  I can accept that people have a duty to obey democratic laws for the sake of argument, and should especially refrain from trying to change laws in non-democratic ways .  I can accept arguendo that Swartz violated that duty.

But while we have a duty to obey dumb laws, we obviously don't have a duty to fight for stupid laws.  We 1. don't have to put in any effort to see dumb laws are enforced (beyond some simple requriments, like "don't obstruct justice"), 2. can actively fight to bring down dumb laws in legal ways -- blog against 'em, protest against 'em, and 3. can even do stuff to help law breakers, provided it is legal -- represent 'em court, blog on their behalf, etc.

 In other words, when it comes to dumb laws we have a duty to not break the law and that's it.  But Kerr seems to be saying that, were I a US attorney, I would be morally obligated to do more than that.  Not just obey the law, but actively fight for it.  Makes it my life work to see that dumb laws are not broken, even above and beyond my legal duty to do so.  Because US attorneys don't have a duty to prosecute every crime they hear about, the law very specifically gives US attorneys prosecutorial discretion.  If, within that discretion, a US attorney wants to punish a lawbreaker more lightly because the law he broke was stupid, they get to (as a legal matter).  That they don't get to as a moral matter apparently rests on us saying "breaking dumb laws is bad, but none of us have a moral duty to help enforce dumb laws beyond what is legally required of us.  Except for US attorneys, upon whose shoulders alone rests the charge of preserving democracy by vigorously prosecuting those who violate dumb laws."  To me, that begs the question:  Why do *I* get to fight within the law to undermine dumb laws and help lawbreakers as much as possible, but US attorney's don't?  Or did I get that wrong, and I do in fact have a moral obligation even above my legal obligations to support dumb laws?

Basically Ortiz is arguing against prosecutorial discretion, more-or-less saying that prosecutors have a moral duty to vigorously prosecute anyone likely to be a recidivist and likely to comity crimes that undermine democratically created laws (and since most of our laws are democratically , that basically means "anyone likely to break the law again").  I think that imposes a bizarre obligation on prosecutors.  Just so, I don't think prosecutorial discretion undermines the rule of law (there are lots of ways to reign in prosecutors who abuse prosecutorial discretion, from firing them to prosecuting them to voting them out of office).  So I basically disagree all around.

Swartz didn't much harm anyone, wasn't likely to much harm anyone again, and was acting in a good cause.  He deserved, at most, a slap on the wrist.  I have no moral duty to yell at him on this blog in order to preserve our democratic laws, and prosecutors had no moral duty to harshly punish him in order to preserve dumb laws.