AG Holder's Defense of Swartz Prosecution is Troubling

by: Lawrence S. Goldman

Attorney General Eric Holder yesterday defended the Department of Justice's treatment of Aaron Swartz, the 26 year-old internet activist who committed suicide three months before his scheduled trial in federal court in Boston.  Specifically, Holder, in response to questioning by Sen. John Cornyn, a Texas Republican, defended the prosecution by citing the plea offer, stating, "There was never an intention for him to go to jail for longer than a 3-, 4- potentially 5-month range . . . .  Those, those offers were rejected."

Holder's response troubles me in at least two regards.  First is his implicit belief that a five-month jail sentence for Swartz was lenient.  Swartz' alleged crimes were clearly based on a heartfelt belief that the public was entitled to free access to knowledge, specifically to academic journals.  He would receive no personal benefit for his actions.  Perhaps in these days, where sentences of years in double digits are commonplace, a sentence of five months seems to Holder like a trip to Disneyland, but five months in jail for a fragile young man acting out of humanistic belief and causing only comparatively light physical damage does not seem lenient to me.  Apparently, Swartz did not see it as light.

Second is Holder's further implicit assumption that government decency is satisfied by a reasonable plea offer and available only to those who plead guilty.  Swartz was indicted originally for crimes theoretically punishable by up to 35 years in prison.  Later, a superseding indictment which ratcheted the potential sentence up to 50 years was filed.  Had Swartz exercised his constitutional right to go to trial and been convicted, I would have been shocked if the government would have sought a sentence of five months or less.  Rather, it undoubtedly would have sought a long sentence, most likely in the sentencing guideline range of approximately seven years.

I do not condemn the government for prosecuting Swartz.  Perhaps prosecuting him was cruel, but prosecutions are often cruel to defendants.  Despite his noble intentions, Swartz arguably violated the law, and I do not believe a victim should control the decision to prosecute, one way or the other.  I do not, however, believe that Swartz' purported crimes deserved the full-blown zealous prosecution they received.  A prosecutor in the appropriate case should charge less than the most serious crimes available and not always exercise her power to the "full extent of the law."  Prosecutorial decency, or prosecution discretion, should not be confined only to plea offers.

(goldman)