Greater Greater Washington

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. ...

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 Houseand where even those brought to "justice" never even have to admit any wrongdoing, let alone be labeled "felons."

Our local criminal justice system also has plenty of examples of proportionality failures.

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 constituencydriversbehind it. Will the council now do the same for other areas of our criminal justice?

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. 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 now lives with his wife and daughter in Dupont Circle. 

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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.

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 • linkreport

No one is responsible for a suicide except the person who committed suicide. Simple as that. And by saying anything otherwise, we're telling everyone who contemplates suicide that it is a legitimate, and effective, way to get people to pay attention to your plight. We can't have a meaningful conversation about this man's legal fight without first separating it from his suicide, and people most definitely are not doing that now.

by Todd on Jan 14, 2013 10:57 am • linkreport

There is a lot packed into this article!

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 • linkreport

Todd:
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 • linkreport

The US Attorney went way overboard - this was a form of bullying. She should step down. But the bigger priority is re-evaluating our laws on "cybercrime," which were dominated by corporate interests. Two quick videos every legislator should watch: "Copying Is Not Theft," http://www.youtube.com/watch?v=IeTybKL1pM4 (http://questioncopyright.org/)

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 • linkreport

I don't necessarily disagree with Todd, but the details in this case are just too egregious to ignore. Aaron Swartz was effectively facing life in prison for an extremely minor crime. (A crime that, I should add, was only being prosecuted by the state -- he amicably settled out of court with JSTOR and MIT a long time ago.)

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 • linkreport

Todd makes an excellent point. I was uncomfortable with using the unfortunate suicide as a way to motivate the issues in the article.

by Ward 1 Guy on Jan 14, 2013 11:12 am • linkreport

When a driver was caught on tape assaulting a cyclist, authorities didn't press charges.

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 • linkreport

Copyright infringement penalties are beyond reason in the US system. Big business is trying to reign in the freedom of the internet and criminalize everything they don't like, ignoring the fact that they are hanging to outdated business models and stifling the progress that the internet enables.

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 • linkreport

[This comment has been deleted for violating the comment policy.]

by charlie on Jan 14, 2013 11:19 am • linkreport

The first thing we need is an open society. Universities are funded by public tax dollars. Academic works should be free.

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 • linkreport

@thump:

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 • linkreport

The first thing we need is an open society. Universities are funded by public tax dollars. Academic works should be free.

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 • linkreport

It's hard for me to think effectively about this while Aaron's death is still so raw. (I had met him and occasionally corresponded, and was an admirer.) But thank you, David, for starting this conversation.

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 • linkreport

@oboe-I think that's correct. The US Attorney took over. I just heard from the cyclist and the driver is facing 4 criminal counts. 1)Assault w/ Significant Bodily Injury. 2)Leaving After Collision-Personal Injury. 3)Leaving After Collision-Damage 4)Destruction of Property-Less than $1,000.

The first charge is something like 3 years/$3,000.

by thump on Jan 14, 2013 11:56 am • linkreport

Intellectual property protections were virtually non-existent in the former Soviet Union, which, not coincidentally produced virtually nothing of creative value in its history.

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 • linkreport

Unfortunately prosecution doesn't have much to do with guilt/innocence or severity of the actual "crime" as to whether a person is a "target".

by Tom Coumaris on Jan 14, 2013 12:42 pm • linkreport

@thethinker,

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 • linkreport

@ oboe:+1

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 • linkreport

Never heard of the Aaron guy but do we really need to talk about "gov't overreach (or lack)" as it relates to his suicide? Does talking about how drivers and cyclists infractions differ really relate to his suicide? I'm suggesting it does not.

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 • linkreport

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.

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 • linkreport

By allowing creators to maximize their wealth you are encouraging creativity.

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 • linkreport

The sad end result of ever-expanding IP protection...

by oboe on Jan 14, 2013 1:58 pm • linkreport

@oboe: Your characterizing the issue as "monopolistic rights" puts a pejorative spin on this. This is probably relevant to hugely popular and important works produced 50 years ago that are still under copyright -- e.g., The Catcher in the Rye, where the writer has passed away and yet the estate still keeps a very hard lid on the rights. However in most cases, a writer gets very little for the work, and clearly not enough to justify the time spend on it. These are the people that need to "maximize revenue".

by goldfish on Jan 14, 2013 2:04 pm • linkreport

@goldfish - Right, but as someone who's life goal IS to someday lay about my house in my underwear and collect royalty checks, if it doesn't happen within, say, 15 years, it's not going to happen after. If you really care about maximizing revenue as a writer, you got to make it happen before everyone forgets about your work. You are correct that writers get a very small percentage of what they write, but a small percentage of a diminishing return does nothing to fix that.

by Tim Krepp on Jan 14, 2013 2:11 pm • linkreport

More about Aaron:
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 • linkreport

Yes, @HogWash, that is exactly what happened. He illegally obtained and released information to the public because he felt we should have it? But, that doesn't justify lawbreaking, but his also wasn't a transgression that merits multiple felony counts and jail time.

Incidentally, that's not my line. It was David's in the original post.

by Tim Krepp on Jan 14, 2013 2:27 pm • linkreport

Hogwash,

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 • linkreport

@Tim...lol..Thanks!

@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 • linkreport

This is not urbanism. And there are many other cases that are urbanism wrt crime, justice, the legal system, that are more relevant probably.

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 • linkreport

not big.

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 • linkreport

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.

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 • linkreport

@ the thinker:Here in the real world, people are motivated by a desire to maximize their wealth.

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 • linkreport

I feel compelled to point out that the allegation against both Swartz and Manning are just that -- allegations. Neither has admitted taking the alleged actions, nor has it been proven that they did so.

Furthermore, to call unauthorized copying "theft" is a broad misuse of language. Copying is copying.

by Gavin on Jan 14, 2013 4:50 pm • linkreport

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 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 • linkreport

What kind of twisted logic is that?

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 • linkreport

And yes again, it's a stretch to call him a thief.

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 • linkreport

@thethinker, the former Soviet Union...produced virtually nothing of creative value in its history.

Really? http://en.wikipedia.org/wiki/List_of_Nobel_laureates_by_country

by Tina on Jan 14, 2013 6:02 pm • linkreport

@thethinker, ...people are motivated by a desire to maximize their wealth Surely you know people for whom this is not the major motivator. I am surrounded by people who are motivated by many things other than greed. Most of the people I know are motivated by the opportunity to do intellectually satisfying work that contributes to the uplifting of the human condition.

by Tina on Jan 14, 2013 6:08 pm • linkreport

Aaron Swartz's death is a tragedy, was unnecessary and is noteworthy because of the work he was doing for US society and humanity in general. Thanks David for bringing this story up for readers' consideration.

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 • linkreport

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