Nothing Out of the Ordinary: Aaron Swartz & the Trouble with Prosecutors


By: Mara Dolan – February 2013

The one thing certain about the Aaron Swartz case is that we don’t have all the facts yet, and so we cannot know whether U.S. Attorney Carmen Ortiz acted improperly. She says she did nothing out of the ordinary, and she’s probably right. In a statement, she said the case had been “reasonably handled and we would not have done things differently.” She did what prosecutors do. What this case does illustrate, painfully, is that the nature of prosecution disregards the individual circumstances of defendants. What prosecutors do every day, nothing out of the ordinary, is terribly wrong and must change.

The shock and blame following the suicide of Aaron Swartz is understandable. Aaron faced 35 years in prison and $1 million in fines for charges related to wire fraud, computer fraud and unlawfully obtaining information from a protected computer. He seemed like such a nice boy; he was smart, helping to create RSS at the tender age of 14, and advocating for internet freedom as an adult. But he also broke into a closet at M.I.T., gained illegal access to a database, and made privately held documents available online for free. Of course that’s against the law and Aaron Swartz should have had to answer for that.

When the accusations against U.S. Attorney Carmen Ortiz were at their height, her husband tweeted that no one mentioned that Aaron Swartz was offered six months in a federal low security facility in exchange for a guilty plea. It’s an important point, and perhaps six months was appropriate.

Aaron Swartz’s attorney has also been under attack, also perhaps unfairly. Reason only works on the reasonable, and sometimes even the best attorney cannot persuade a client who lacks the capacity to understand that they broke the law, and that if they go to trial they will go to jail for a lot longer than they will if they just admit it.

For many, the Aaron Swartz case is their first real look at the job of the prosecutor and they don’t like what they see: a prosecutor threatening a nice boy with 35 years in jail if he doesn’t cooperate, and a defendant so fearful and unable to cope, even with the assistance of all his supporters, his loving family, his girlfriend and his attorney, that he committed suicide rather than face his accusers.

To be fair, the grievous wrongs committed by prosecutors are not entirely their fault. Under the law, anything a defendant says can and really will be used against them. Defense attorneys make sure that their clients say only as much as the law demands and a good defense requires. But within the safety and security of the attorney-client relationship the real human being comes out, with all the nuance, complexity and background you need in order to fully understand what happened and determine an appropriate response. Defendants can speak openly and honestly with their attorneys, and a compassionate and skilled defense attorney can help rehabilitate their client far more than a harsh prosecutor ever could.

Sentences should be given to rehabilitate and deter, and a long period of incarceration on its own does neither. The only people who should be behind bars for long sentences are those who pose a danger to society, but I’m not naive. There are people who should be locked up for good, forever, and I’m all for it.

And who is less reasonable than a drug or alcohol addict? Ninety percent of crimes are related to drug and alcohol abuse. Defendants who commit crimes while under the influence, or driven to the point of desperation by addiction and withdrawal to do something terrible they wouldn’t have done otherwise, can be very different people after a week or two of detox.

When they sober up, dry out and clean up addicts realize that they don’t want to be addicts. In a cold cement block, trapped behind bars in a small cell, breathing in un-circulating air filled with the sickening smell of human waste, they realize that whatever it is they get out of their drug and alcohol abuse isn’t worth it, and that part of the insanity of their addiction is the idea that using makes them happier.

Instead of having meaningful, honest, helpful discussions with defendants, prosecutors are arguing in court over whether an arrest was lawful, and whether evidence should be admissible. We’re wasting billions locking people up instead of putting them to work and helping them become productive members of society. We’re teaching the very people who need help the most that all they can get is punishment, and making it harder for them to enjoy the rewards and esteem that come from being productive members of polite society.

If it turns out that U.S. Attorney Carmen Ortiz really did nothing out of the ordinary, we should take no comfort in that. Aaron Swartz was extraordinarily privileged, and all his privileges weren’t enough to save him. Imagine what millions of ordinary, under-privileged defendants go through in our criminal justice system, and imagine all the good we could do them, and ourselves, if we make these ordinary prosecution history.

Mara Dolan is an attorney, a former candidate for State Senate and the producer and host of “Twilight Talk” on WCAP, Mondays 7-9pm. You can follow her on Twitter @MaraDolan.You can email her at