Lessons from Kafka: Aaron Swartz and Prosecutorial Overreaching (Updated)

Several days later, the sadness over Aaron Swartz’s death — and outrage over the prosecution that his family and friends say played a role — still lingers. I wrote my thoughts about the meritless Swartz prosecution right after he was indicted in 2011, and have since updated the post to address the information disclosed since his death. But this post isn’t about the details of Swartz’s prosecution, it’s about him and the criminal justice system we built for him.

 

In September 2011, a few months after my post went up, I received an email from Aaron thanking me for my post, and asking, “If you have any time, I’d love to get your thoughts on a few things. Would it be possible to have a phone call at some point?” Much has been written about his brilliance and his extraordinary curiosity — which he himself said was all that distinguished him from everyone else — and about his uncompromising stances. I quote his introduction here to note that, when sending an email to a stranger, he was charming and unassuming, and when we spoke he was unfailingly polite.

 

In the conversation that followed his email, we talked about how the biggest challenge in a prosecution is the psychological stress. I told him to be mindful of the case but to still live his life. I told him, in all seriousness, to read Franz Kafka’s The Trial, because much of what was going to happen was going to be frustratingly incomprehensible. The law has a way of appearing to be rational even when it is being wholly irrational; after a few desperate initial years in law school and early practice, lawyers learn to be stoic and to accept the whims of the whirlwind, but to an outside observer any effort to comprehend the machinery of the law in a mere matter of months would leave them feeling powerless. I’m sure I’m not the only one who recommended it, given the circumstances.

 

Then we talked about history, politics, productivity, and a little bit of everything. Maybe our conversation was so pleasant because he was exceptional social engineer; reading his eulogies, it seems that most everyone who interacted with him had a similar engaging experience, regardless of the context or the topic. For what it’s worth, my impression was that he was so curious about the world that he was genuinely appreciative when anyone helped him explore an idea.

 

A few months after we spoke, The Trial showed up on his 2011 Review of Books

 

A deep and magnificent work. I’d not really read much Kafka before and had grown up led to believe that it was a paranoid and hyperbolic work, dystopian fiction in the style of George Orwell. Yet I read it and found it was precisely accurate — every single detail perfectly mirrored my own experience. This isn’t fiction, but documentary.

 

Spoilers follow.

 

The bulk of the book is about K trying to find someone to fight his case for him, and failing miserably. As an individual in a world of bureaucracies, he concludes there’s no substitute but to do the work himself.

 

This is set against the backdrop of his “day job” at the bank — about as characteristic a bureaucracy as you can imagine. The bank, by contrast, has no difficulty finding people to do its work for it. Even when K slacks off or gets distracted, the bank continues chugging along just fine — as seen in the vice president who leaps to take K’s work from him. (Compare: The independent lawyer is under no such pressure to actually get K’s work done.)

 

A vivid illustration that bureaucracies, once they get started, continue doing whatever mindless thing they’ve been set up to do, regardless of whether the people in them particularly want to do it or whether it’s even a good idea. At the same time, individual people have an incredibly hard time executing long-term or large-scale tasks on their own, even when they’re quite motivated.

 

(His review of The Trial continues at his site.) I wrote to him, “I’m not surprised you found The Trial a compelling read. I’d assume the movie Brazil is on your list, too.” He responded: “Nice to hear from you! Indeed, _Brazil_ is my favorite film. The insight it has on so many levels is just tremendous.”

 

When I left a comment on his post about perfect institutions discussing the “swiss cheese” model of accident causation, he shot me an email: “Hadn’t seen this before; fascinating.” He probably sent out a dozen other emails to people that day thanking them for this or that idea. He was forever curious and always grateful to learn and to share a new idea, and now he’s gone.

 

Activists have started rallying in his memory, most of it down one of two tracks: furthering his ideals of liberating information (see, e.g., Dan Gillmor, the #PDFtribute) and seeking retribution from Carmen Ortiz, the U.S. Attorney whose office prosecuted him, and MIT, for encouraging the prosecution.

 

I can’t speak about information liberation; others know that better, like Carl Malamud. I also can’t speak about MIT; that reckoning is for the alumni, students, and other interested parties to resolve. But, I can speak about the law, and the core point to realize here is that Aaron Swartz was in all likelihood not prosecuted so vigorously because of anything personal to him. Rather, as Aaron reviewed The Trial, our criminal justice system has a tendency to spiral out of control, so that, “once they get started, [prosecutors] continue doing whatever mindless thing they’ve been set up to do, regardless of whether the people in them particularly want to do it or whether it’s even a good idea.” So what now?

 

First, if you are concerned about Carmen Ortiz specifically, remember that she (like all U.S. Attorneys) serves at the President’s discretion. The initial complaint thus starts with Barack Obama, and this petition is as good as any place to start. The situation demands an inquiry — for the reasons raised in my June 2011 post. I think the claim against Swartz is meritless, but even if we assume it was arguable, the question is then: why is the U.S. Attorney prosecuting merely arguable claims where even the victim (JSTOR) has gone out of its way to lobby against prosecution? This can be, as Obama would say, a “teaching moment” for current and future prosecutors.

 

Dan Kennedy has rounded up several instances of Ortiz aggressively prosecuting cases that fall outside the norm of federal criminal law. I have examples on the opposite side: she repeatedly chose not to demand any individual accountability when pursuing healthcare executives for defrauding and endangering the public, and in March 2012 her office decided not to prosecute Medtronic at all over its flagrantly illegal methods of promoting the Infuse bone graft. (As Christopher Hitchens said, “The essence of tyranny is not iron law. It is capricious law.”) Ortiz is a public servant, one who wields enormous power; see the Justice Robert Jackson quote in my prior post: “The prosecutor has more control over life, liberty, and reputation than any other person in America.” She should be able to explain her decisions and her philosophy; if she cannot explain why she is threatening someone’s liberty, she should not do it.

 

Second, general oversight for the U.S. Attorney’s office is held by the Senate Judiciary Committee. Are any of these Senators from your state? Give them a call or write them a letter. Give Chairman Leahy’s an office a call. If no one from your state is on the committee, that’s okay: call or write your Senator, and ask them to raise these issues with the Committee. Tell them you’re concerned about the lack of oversight of U.S. Attorneys, and ask them what they’re doing to look into prosecutorial overreaching. Recommend they set up a special committee. Ask them to follow up with you later. If they don’t, follow up with them.

 

Third, remember these issues when you read the news and when you vote at the ballot box. The problem of prosecutorial overreach did not begin with Aaron, and it’s not going to be solved overnight. The problem is not just about obvious injustices done to a good person, but, more often, about bad things happening to bad people.

 

As Dan Kennedy noted, Ortiz made waves among civil libertarians earlier with the aggressive prosecution of Tarek Mehanna, a propagandist for Al Qaeda. We all think he’s a bad person, and so few stood up when Ortiz’s office did something bad to him, putting him away for 17 years for things he said. Similarly, many of you recognize Whitey Bulger not by name, but by character: he was the inspiration for Jack Nicholson’s character in The Departed. If his reputation is at all true to life, then he is almost certainly guilty of the murder for which he is being prosecuted by Ortiz’s office, but that does not mean he should be precluded from using any of his assets to defend himself.

 

It is that culture of over-prosecution and over-punishment that needs to change. Stories come and stories go about the United States’ culture of incarceration, and we ignore them, because they appear to affect only bad people. Shane Bauer spent two years incommunicado, held as a spy in an Iranian prison, and when he came home he investigated solitary confinement in the United States and concluded it was worse.

 

We built and we maintain the bureaucracy that put Aaron Swartz through The Trial. If we want to stop that from happening again, we need to change it. As Aaron concluded, “K is missing the larger point: this is just how bureaucracy works. K takes the lesson to heart and decides to stop fighting the system and just live his life without asking for permission. It goes well…for a while.”

 

[Update: Carmen Ortiz has issued a statement defending her actions; Timothy Lee swiftly dismantles it. Ortiz cannot claim to have been seeking merely six months in prison when her own press release with the indictment trumpeted how Swartz “faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million," and when she specifically filed an updated indictment against him which bumped it up to 50 years. Moreover, as Harvey Silvergate quips at the Boston Herald, “Oh, so you’re innocent. Do only six months in jail."

 

Looking more broadly, Radley Balko, who has been following civil liberties and prosecutorial misconduct for years, has a through analysis of the problems, and former Judge Nancy Gertner raises the case as an example of systematic bad judgment by federal prosecutors. As I mention in the comments below, if you want to take immediate action on these issues in general, call up your Senators and Representative and ask them to get moving on the National Criminal Justice Commission Act. The ACLU explains more about the Act here. The Act garnered majorities in both the House and the Senate in 2011, but was scuttled by a filibuster from Senators in states with the most dismal criminal justice systems, presumably to save their local officials from embarrassment.

 

For more reading, Stephanos Bibas at UPenn Law has been cranking out articles on plea bargaining problems for years and has won significant victories in the Supreme Court; his  “Plea Bargaining Outside the Shadow of Trial,” 117 HARV. L. REV. 2463 (2004) is a mainstay in the field, and PBS ran The Plea in part based on his work. Also, Room for Debate covered prosecutorial discretion last August, and Judge Mark W. Bennett wrote about mandatory minimums last October.]

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  • M.B.

    I appreciate your answers to the question, “What now?” However, I wonder about your description of Swartz and others being casualties of a “mindless” prosecutorial machine. In Swartz’s case, I suspect that Carmen Ortiz’s “overreaching” may have been based on political considerations: that a high profile case would result in career advancements for her (Governor? Senator?) and that it did not matter that she was dismantling a young man’s life.

    • http://www.litigationandtrial.com/ Max Kennerly

      You might be entirely right; I certainly don’t understand what the thinking was behind the prosecution, nor why they continued to demand he plead guilty to every count. I also don’t see why the call from Mary Jo White — one of the most highly regarded former federal prosecutors in the country — didn’t do more to sway them.
      I focus on the question of bureaucracy because we have to have a fair amount of prosecutorial discretion in the system, and thus the question is how to best manage discretion. To me, the good exercise of discretion comes from (1) choosing the right people; (2) giving those people the right guidance and examples; and, (3) proper oversight. Right now we have a poor system of #1 (people are chosen because they are not politically controversial), a system of #2 that encourages over-prosecution, and virtually no system #3 at all. Nobody oversees the U.S. Attorneys except, behind closed doors and to a limited extent, the Attorney General’s office.
      We need to change that, and that starts with people being upset every time prosecutors overstep their bounds.

  • @dubble0h

    We have exact same problem of overreachwith cps in uk. Many good people jailed and for little reason as jails here like holidycamps. What needs to change if PR around (-(in)justice industry. People are brainwashed into believing only BAD peoplego to jail. That the police are morally upright And that judges rulings are somehow infallible. Only when you get involved with the justice industry do you realize how corrupt it really is

    • http://www.litigationandtrial.com/ Max Kennerly

      Indeed, the “only bad people get prosecuted, and they don’t deserve any rights” is a problem even in the absence of corruption. A slipshod prosecutor with no animus at all, merely incompetence, can easily put someone away for murder by failing to disclose exculpatory evidence; that scenario is sadly routine in America.

  • http://twitter.com/metasj samuel klein

    Wow. Thank you, again, for such clear analysis and direction for action.

    • http://www.litigationandtrial.com/ Max Kennerly

      Thanks. Want to do something right now? Call up your Senators and Representative and tell them you’d like them to start moving again on the National Criminal Justice Commission Act. It failed in the Senate in late 2011, but it’s still bouncing around. Get it on Congress’ radar again.