One of the most interesting strains to emerge in the coverage of Aaron Swartz’s suicide is a critique of the prosecutor who leveled legal charges against the digital activist — and, by extension, a critique of the adversarial judicial system as a whole. Tim Wu in The New Yorker writes:
The prosecutors forgot that, as public officials, their job isn’t to try and win at all costs but to use the awesome power of criminal law to protect the public from actual harm. Ortiz has not commented on the case. But, had she been in charge when Jobs and Wozniak were breaking the laws, we might never have had Apple computers. It was at this moment that our legal system and our society utterly failed.
Defenders of the prosecution seem to think that anyone charged with a felony must somehow deserve punishment. That idea can only be sustained without actual exposure to the legal system. Yes, most of the time prosecutors do chase actual wrongdoers, but today our criminal laws are so expansive that most people of any vigor and spirit can be found to violate them in some way. Basically, under American law, anyone interesting is a felon. The prosecutors, not the law, decide who deserves punishment.
Today, prosecutors feel they have license to treat leakers of information like crime lords or terrorists. In an age when our frontiers are digital, the criminal system threatens something intangible but incredibly valuable.
Of course, DA’s can argue they walk a fine line between pressing frivolous charges and prosecutors “actual harm” to society — and just who judges what actual harm is to society, anyway? They can argue the law is the law is the law and it’s not in our power to let Swartz go because we don’t agree with the law he broke.
I hear those arguments. But when I hear the words of the prosecutor in Swartz’s case, I hear the words of someone trying to make a name for herself — or at least someone who’d make for a good sparring partner on Nancy Grace. And all of this doesn’t even touch the arguments about the meaning of money that can make the debate at the center of an adversarial judicial system one-sided — as Supreme Court Justice Hugo Black once wrote, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”
I don’t mean to throw the kitchen sink at the judiciary, because it’s easy to take pot-shots at a system so massive. And I don’t mean to make Swartz out to be a martyr or a victim, because he’s not blameless in all this. He may have indeed broken laws. But 35 years in prison?
It’s just seems to affirm my suspicion that there’s no sense of proportion in the legal system — and that there are hundreds or thousands of cases like Swartz’s where it seems the ego of the prosecutor was, to a degree, above the spirit of the law.