Public Safety
Can we get more proportionality in criminal justice?
I was heartbroken to read that Aaron Swartz, a 26-year-old Internet freedom activist, author of RSS, and Reddit cofounder, killed himself on Friday. I'd met Aaron a few times; on April 6, 2009, he emailed me to ask about books he should read on city policy issues.
Photo by okfn on Flickr.
Aaron clearly suffered from depression, but his family, law professor Lawrence Lessig, and many others are also criticizing prosecutors in the Boston US Attorney's office who hounded Aaron with multiple felony charges after he downloaded large numbers of academic articles at MIT, but never distributed them.
Aaron, and many others, find a major injustice in the the way academic journals pay authors nothing for articles but then charge large amounts of money for online access to the journals. That doesn't justify lawbreaking, but his also wasn't a transgression that merits multiple felony counts and jail time.
In a post entitled "Prosecutor as bully," Lessig wrote:
If what the government alleged was true ... then what [Aaron] did was wrong. ... But all this shows is that if the government proved its case, some punishment was appropriate. So what was that appropriate punishment? ... Our government continued to push as if it had caught the 9/11 terrorists red-handed. ...Our local criminal justice system also has plenty of examples of proportionality failures.From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. ... I get wrong. But I also get proportionality. And if you don't get both, you don't deserve to have the power of the United States government behind you.
For remember, we live in a world where the architects of the financial crisis regularly dine at the White House
— and where even those brought to "justice" never even have to admit any wrongdoing, let alone be labeled "felons."
Drivers who behave recklessly and kill pedestrians and cyclists usually face little punishment unless they are drunk or flee. When a driver was caught on tape assaulting a cyclist, authorities didn't press charges. After police worked hard to investigate a driver who was allegedly on his cell phone when he hit and killed a senior crossing the street, prosecutors brought charges, but a grand jury refused to indict.
Meanwhile, our punishments for some transgressions often go far beyond what's appropriate or what is necessary to stop crime, like suspending students for taking their prescription medication without proper paperwork or a 6-year-old for making a gun shape with a hand.
Even for violent crimes, which we absolutely must vehemently combat, prison terms often far exceed what's necessary or effective. In his most recent column, David Brooks wrote:
If you want to deter crime, it seems that you'd want to lengthen prison sentences so that criminals would face steeper costs for breaking the law. In fact, a mountain of research shows that increases in prison terms have done nothing to deter crime. Criminals, like the rest of us, aren't much influenced by things they might have to experience far in the future.Instead, it's more effective to fight lawbreaking by adding actual enforcement, so that more perpetrators get caught and punished. In the lingo of the field, you want to increase certainty rather than severity.
Based on this logic, our local government just passed a bill to relieve punitive burdens on drivers who speed. It made sense not to charge punitively high fees on speeders, since the primary objective must be safety rather than revenue. (Unfortunately, Phil Mendelson, who never participated in the task force that pored over research and debated options, then rewrote or deleted most of the key provisions in the bill that would increase certainty, and added new sections that will reduce safety in other ways.)
Now we've applied the certainty-over-severity analysis, or at least the less-severity half, to an area of crime that has a politically powerful constituency Unlike speeding, injustices in the way we prosecute drug laws or the "school to prison pipeline" disproportionately affect poorer and minority communities that have less political clout. The families who suffer from over-incarceration are less likely to be the ones having lunch with a councilmember than the business leader who might complain about some speeding tickets.
Will Wells try to fix laws that over-punish some people to little end, and under-punish others who today don't face any consequences for serious transgressions? Will the rest of the council agree to such measures?
It's not possible to devise a perfectly fair criminal justice system. Some people will get away with serious malfeasance while others suffer excessively. What we can do, both nationally by recalibrating our response to journal article downloading versus financial fraud, or locally in our response to speeding versus shooting transgendered people, is push for more proportionality where possible. There's a lot of work to do.
David Alpert is the Founder and Editor-in-Chief of Greater Greater Washington and Greater Greater Education. He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He loves the area which is, in many ways, greater than those others, and wants to see it become even greater. 
Comments
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If you want to deter crime, it seems that you'd want to lengthen prison sentences so that criminals would face steeper costs for breaking the law. In fact, a mountain of research shows that increases in prison terms have done nothing to deter crime. Criminals, like the rest of us, aren't much influenced by things they might have to experience far in the future.
True enough, but deterrence is not the only purpose of imprisonment. With violent crime in particular, one of the main purposes is to remove offenders from the general population in order to protect the population from them. We don't assign lengthy jail terms for murder purely in the hopes of deterring people from committing murder. We do it because we want to keep murderers away from society.
by Dizzy on Jan 14, 2013 10:55 am • link • report
by Todd on Jan 14, 2013 10:57 am • link • report
In the certainty/severity tradeoff you have to consider cost. To put it bluntly, it's easier to make an example out of someone ("take someone out back and shoot him") than to punish everyone who commits the offense.
I'm not saying we have the right balance now on any of the issues you raise, but want to point out that the costs of catching every lawbreaker breaking any law can grow exponentially, both in terms of enforcement as well as criminal justice system processing costs (large volume, even with reduced penalties).
by Ward 1 Guy on Jan 14, 2013 11:04 am • link • report
The article here isn't really about that at all. I actually think David has done an excellent job here of separating the two issues.
by MLD on Jan 14, 2013 11:04 am • link • report
And "The $8 Billion iPod,” http://www.ted.com/talks/rob_reid_the_8_billion_ipod.html (more details at http://blog.ted.com/2012/03/20/the-numbers-behind-the-copyright-math/)
by MV Jantzen on Jan 14, 2013 11:05 am • link • report
I wouldn't agree with the assessment that Aaron's death was a call for attention -- I get the impression that he genuinely believed that he was facing a truly hopeless situation.
It is very difficult to make the case that the US Attorneys were representing the best interests of the American people, or responsibly prioritizing their resources by prosecuting Aaron Swartz.
The state might not be responsible for Aaron Swartz's death, but they were grossly out of line in their actions.
by andrew on Jan 14, 2013 11:09 am • link • report
by Ward 1 Guy on Jan 14, 2013 11:12 am • link • report
This is incorrect. The driver has been charged with several serious counts in criminal court. A group is/has been riding from Mt. Rainier into DC the first Monday of each month in support of that cyclist. My understanding is that the trial begins the first Monday of March (3/4/13).
Unlike speeding, injustices in the way we prosecute drug laws or the "school to prison pipeline" disproportionately affect poorer and minority communities that have less political clout.
I'd argue that speeding actually does impact low-income folks disproportionately as high speed roads are often placed (or have been) right in the middle of their communities.
by thump on Jan 14, 2013 11:15 am • link • report
People who successfully challenge these models get criminalized, penalized and stigmatized as if they were terrorists. Swartz, Assange, Dotcom, the Pirate Bay. Not to mention the many rather innocent passers-by who just downloaded a few songs and get slapped with unreasonable fines.
Paranoia government also loves to regulate the internet, seeing as an infinite resource of information on its citizens whose freedoms it is supposed to protect. It is staggering to see that while social media has enabled revolutions in very unfree countries, governments in free countries can't wait to reign in freedom on the internet.
Funny enough, there is no reason for these extreme measures. More lenient copyright protection does not stifle creativity, nor does it limit income. The Netherlands is and example. Despite the fact that downloading anything from the web is legal, the country dominates the worlds in the production of dance music.
DJ Armin van Buuren has openly admitted that while he's not happy that some people download his music for free, he can not deny that his international popularity is largely due to the fact that fans started putting copies of his radioshow on the web. And instead of whining about it, most DJs have adapted and created business models that yield plenty of profit.
/end rant.
by Jasper on Jan 14, 2013 11:17 am • link • report
by charlie on Jan 14, 2013 11:19 am • link • report
US Courts documents should be free for public access.
Secondly, we need prosecutors to focus on actual crime. UBS and other financial institutions laundered money for drug dealers.
by Redline SOS on Jan 14, 2013 11:21 am • link • report
The driver has been charged with several serious counts in criminal court. A group is/has been riding from Mt. Rainier into DC the first Monday of each month in support of that cyclist. My understanding is that the trial begins the first Monday of March (3/4/13).
Wasn't the initial response by MPD to take the film evidence taken by the cyclist, and pretty much ignore it? I think it was only after a huge public outcry (and long delay) that MPD eventually issued a bench warrant.
(I may be misremembering)
by oboe on Jan 14, 2013 11:36 am • link • report
One could extend that argument to virtually anything funded by public tax dollars. But not everything should be free. However, these works should be easier to access for people who need them.
by Scoot on Jan 14, 2013 11:38 am • link • report
I would point out that ex-Sen. Jim Webb also had tried to lead a national conversation about criminal justice reform, and cited its failure as an example of the reasons why he decided to leave the Senate.
It's clear that our system often falls short of what most people would call fair. That's true nationally and I suspect it's true locally as well. If Aaron's death can spur us to find solutions to make the justice system more just, I think it'd be a fitting legacy.
by Gavin on Jan 14, 2013 11:40 am • link • report
The first charge is something like 3 years/$3,000.
by thump on Jan 14, 2013 11:56 am • link • report
Every country with a major economy in the world has strong intellectual property rights built into its laws, including the Netherlands (and the entire EU for that matter). The only exception is China, which has built much of its economy by stealing ideas from others. China is now paying the price for this by losing its creative people to countries with IP protections leaving it without any sort of creative class at all.
Strong intellectual property protection, including criminal prosecution [deleted] is essential for maintaining a creative society, a strong economy, and most importantly, a truly free society.
[Deleted for violating the comment policy.]by thethinker on Jan 14, 2013 12:35 pm • link • report
by Tom Coumaris on Jan 14, 2013 12:42 pm • link • report
You know who else failed to enforce intellectual property laws? Pol Pot, that's who!
Seriously though, if we can move back to an adult debate for a moment, the point of IP laws is to encourage the creation of IP, not to maximize the wealth of its creators. That our copyright laws--for example--offer protection for more than, say, ten years is a travesty and a perversion of IP protections.
by oboe on Jan 14, 2013 12:51 pm • link • report
Also, we were talking about copyright, not IP. There is a crucial difference.
@ thethinker: Something is wrong when the fine for downloading a copyright-protected song is $10,000, while the proposed fine for purposely riding someone of their bike is $3000. That's the discussion we're having here. It is not a question whether copyright and IP should be protected, but how they should be protected.
(c) Jasper, 2013
by Jasper on Jan 14, 2013 1:19 pm • link • report
And while I am sensitive to his death, the fact that prosecutors go overboard and are at times unrelenting in "making a point" isn't something new.
Will Wells try to fix laws that over-punish some people to little end, and under-punish others who today don't face any consequences for serious transgressions? Will the rest of the council agree to such measures?
I don't understand this one. Will Wells try to fix laws that overpunish those w/in poor and minority communities? How does he accomplish that?
I agree that attention does need to be paid to how we dole out punishments. But considering that sentencing laws and other things have been on the democratic agenda for decades now, I don't see that much changing..especially here in DC. We "might" get some movement on driver/pedestrian-cyclist accidents...but that's a big might.
by HogWash on Jan 14, 2013 1:32 pm • link • report
Here in the real world, people are motivated by a desire to maximize their wealth. This desire has given us innovations from Ford's assembly line to Facebook (both of which made their creators among the wealthiest men in world at the time). By allowing creators to maximize their wealth you are encouraging creativity. If a creator wants to freely distribute his or her creations, he or she can. But for those that want to profit from their talents and hard work, society must have a system to protect them or else you get nothing created.
by thethinker on Jan 14, 2013 1:37 pm • link • report
This seems pretty obviously wrong.
The argument that creators should be allowed a monopoly on their works in perpetuity isn't based on encouraging creativity--not in the least. It's based on the idea that the creator has a "right" to the proceeds of his work, if not in perpetuity then in their lifetime.
(This might be a valid position, but it's certainly not the one that's often made, nor the one spelled out in the copyright clause of the Constitution.)
Unfortunately, allowing longer and longer periods of monopolistic rights to created works and other IP often stifles creativity. More and more onerous restrictions on fair use do the same.
The optimal policy is to set a period of protection that lasts for some short but meaningful period, but then allows the work to pass into the public domain. That way creators have incentive to create, are rewarded for their efforts, and can move on to creating new works--as opposed to laying around the house drinking in their underwear and collecting royalty checks.
by oboe on Jan 14, 2013 1:50 pm • link • report
by oboe on Jan 14, 2013 1:58 pm • link • report
by goldfish on Jan 14, 2013 2:04 pm • link • report
by Tim Krepp on Jan 14, 2013 2:11 pm • link • report
Swartz faced years in prison after federal prosecutors alleged that he illegally gained access to millions of academic articles through the academic database JSTOR. He allegedly hid a computer in a computer utility closet at the Massachusetts Institute of Technology and downloaded the articles before being caught by campus and local police in 2011.
So this guy did a Bradley Manning and illegally obtained and released information to the public because he felt we should have it?
by HogWash on Jan 14, 2013 2:21 pm • link • report
Incidentally, that's not my line. It was David's in the original post.
by Tim Krepp on Jan 14, 2013 2:27 pm • link • report
Swartz never released anything, he just copied it. Unlike Manning.
The material Swartz accessed was not classified information, unlike Manning.
And Swartz was not a member of the military, and therefore subject to different rules, unlike Manning.
Those are kind of big differences, no?
by Alex B. on Jan 14, 2013 2:32 pm • link • report
@Alex, yes, definitely a difference..not big.
Bradley wasn't caught before he had stolen and released the documents.
Aaron was caught as he was stealing and before he was able to release to the public.
by HogWash on Jan 14, 2013 2:39 pm • link • report
e.g., differential sentencing for people with money vs. not, incarceration rates in poor communities, the "drug war", guns issues, etc.
2. We can argue IP law all we want. I imagine the US Atty would have dealt with this differently if it were 100 or 1000 articles vs. 5MM. But there are plenty of other blogs for arguing such issues.
3. And as Todd points out the suicide thing is something else. I'm not sure I would ever want to be a white hat hacker, but even so I'd have to prepare myself for consequences and I wouldn't do stuff maybe if I couldn't handle it. (E.g., because I fear addiction, it's just a lot easier for me to never use illegal drugs. And I claim to be a libertarian in terms of drug policy.)
by Richard Layman on Jan 14, 2013 4:21 pm • link • report
No, it's a huge difference.
http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/
The method of obtaining the data, the original security of that data, and the nature of the contents are all very, very different from Manning.
by Alex B. on Jan 14, 2013 4:33 pm • link • report
It's not the same case but there is no huge difference. Aaron was caught stealing files he obtained by breaking into a locked room. The nature of the content is irrelevant to the act of theft...something both did. Like Manning, Aaron felt justified in stealing documents (was it really 4million?).
by HogWash on Jan 14, 2013 4:44 pm • link • report
It's funny you say this on a blog that is maintained and monitored for free.
By allowing creators to maximize their wealth you are encouraging creativity.
You need to read the constitution. Copyright and IP exist to 'To promote the Progress of Science and useful Arts'. It does not write creativity, nor does it write maximizing wealth. Furthermore, having IP - even in the current system -, does not mean that you can maximize your wealth. For instance, if your patent builds on another patent that you do not own, you can only use your patent with a license from the other patent owner.
@ goldfish:Your characterizing the issue as "monopolistic rights" puts a pejorative spin on this.
The sole reason why copyright is so long after the death of the author is because Disney would like to keep Mickey Mouse under copyright.
by Jasper on Jan 14, 2013 4:46 pm • link • report
Furthermore, to call unauthorized copying "theft" is a broad misuse of language. Copying is copying.
by Gavin on Jan 14, 2013 4:50 pm • link • report
The closet was not locked. A homeless person was keeping their belongings in there, too. It was an unlocked door in a building open to the public on an open campus.
The nature of the content is irrelevant to the act of theft...something both did.
Leaving aside the defintion of 'theft' for a moment - you're really arguing that copying an academic journal from JSTOR (just as any MIT student, staff, or visitor to their network could do) is the same as removing classified intelligence from a military computer?
Like Manning, Aaron felt justified in stealing documents (was it really 4million?).
So, if they both felt their actions were justified, that somehow means their actions are now equivalent?
What kind of twisted logic is that?
by Alex B. on Jan 14, 2013 4:56 pm • link • report
You believe there's a huge distinction...I don't.
The closet was not locked. A homeless person was keeping their belongings in there, too. It was an unlocked door in a building open to the public on an open campus.
Well sure, that makes it better. But I'll go along. It's a bit strong to call him a thief. He just entered a restricted area and came up w/a way to "copy" millions of files over MIT's network.
by HogWash on Jan 14, 2013 5:12 pm • link • report
On January 4, 2011, Aaron Swartz was observed entering the restricted basement network wiring closet to replace an external hard drive attached to his computer. On January 6, 2011, Swartz returned to the wiring closet to remove his computer equipment. This time he attempted to evade identification at the entrance to the restricted area. As Swartz entered the wiring closet, he held his bicycle helmet like a mask to shield his face, looking through ventilation holes in the helmet. Swartz then removed his computer equipment from the closet, put it in his backpack, and left, again masking his face with the bicycle helmet before peering through a crack in the double doors and cautiously stepping out.
by HogWash on Jan 14, 2013 5:16 pm • link • report
Really? http://en.wikipedia.org/wiki/List_of_Nobel_laureates_by_country
by Tina on Jan 14, 2013 6:02 pm • link • report
by Tina on Jan 14, 2013 6:08 pm • link • report
This interview of two of Swartz's friends/colleagues really sheds light on why this story is so significant:
-his work benefitting society
-his character
-government intimidation/overeach
http://www.youtube.com/watch?v=9-UyhdNxv-4
Besides questions of internet openness/free spread of knowledge issues, ultimately this story gives us a glimpse at the surface of this thing called the prison-industrial complex. Prosecuters have unlimited resources available to them in many cases, they don't care about any semblance of "justice". They just want to send people to jail or scare them into a plea deal.
Have you ever been faced with the likelihood of 35 years in prison (or even a week?) with violent, extremely disturbed individuals who'd just as soon smash your skull against a wall as look at you?
The government's actions caused his suicide.
by flimflam on Jan 16, 2013 11:45 am • link • report
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