(ed. Originally published on January 13, 2013 – here!)
When you think about Aaron Swartz, I want you to think about what it says about “justice” in this country when the plea deal has almost completely replaced a trial as the predominant resolution of criminal prosecutions. A staggering 90% of criminal complaints are resolved through plea deal rather than a free and fair trial (95% in felony cases). This, of course, also explains why prosecutors boast such striking conviction rates – they never have to prove their cases to begin with. They overwhelm and intimidate, bullying the innocent and the guilty alike in order to prevail without the cost and inconvenience of a trial.
Prosecutors pile on charges because the threat of increased jail time is a great bargaining chip against a defendant in order to resolve matters in a cheap, efficient manner. Not because they pursue justice, but because they pursue cost effective outcomes for an already overburdened court system. Many of you can only imagine how this disproportionately affects the poor and marginalized among us. Some of you are those people and don’t need to imagine this at all.
In the UK, these questionable practices are supposedly forbidden:
“Prosecutors should never go ahead with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one…”
When I was in court before my trial, I witnessed a particularly distressing lecture from a judge to a public defender. The defendant refused to deal and it clearly upset the pre trial judge.
“May I remind you,” he said to the public defender he had ordered to approach. “You’re job is to make your client aware of the potential consequences of going to trial.” It was news to me. I thought the job of a public defender was to ensure a defendant’s rights.
After my trial, the prosecution suggested during sentencing that my insouciance in going to trial should be weighed against me. He said that he had made every effort to strike a deal with me but that I was unwilling to listen to reason.
Nevermind that I stood accused of battery on an officer – a charge which was a pure fabrication and which I was compelled to fight on general principle. Nevermind that I continued to express that I would entertain a deal so long as it didn’t include that charge. So rather than take a deal that consisted of pleading guilty to something I didn’t do, I had to fight five charges before me. I like to pretend that I wouldn’t have taken a deal anyway – that I believed justice would prevail on all counts – but I knew better. I just couldn’t bring myself to admit I did something I didn’t do. And the City Attorney decided to make me pay for that.
When you think about Aaron Swartz, a young man.who hung himself after two years of facing trumped up, Federal charges that were clearly meant to elicit a plea – I want you to think about the vast majority, the 90%, who don’t all have his name, wealth, or other available resources. I want you to think about how many people are in jail, not because they are guilty, but because the smart choice often is to take a deal rather than fight for justice. And if that’s true, even in one case, what does that say about justice in this country?
The thing about Aaron Swartz shouldn’t be what a special genius he was – it should be how utterly unremarkable we might find his tragic fate if he wasn’t our beloved Aaron Swartz. Afterall:
Any man’s death diminishes me,
Because I am involved in mankind,
And therefore never send to know for whom the bell tolls;
It tolls for thee.