On Crimes and Punishments: The Cruel and Unusual Threat against Aaron Swartz

A prosecutor forcing someone to admit guilt by threatening a life-destroying cruel and unusual punishment if they do not admit it - why, that is the very essence of using torture to extract a confession!

By Ryan McGreal

Posted January 18, 2013 in Blog (Last Updated January 18, 2013)

In the aftermath of Aaron Swartz' tragic suicide, I've been finding myself thinking that it's time for American lawmakers and prosecutors to re-read Cesare Beccaria's Of Crimes and Punishments.

After its publication in 1764, the framers of the US Constitution were persuaded by its reasoning to amend the Constitution to include a prohibition on "excessive fines" and "cruel and unusual punishments".

It's important to note that "cruel and unusual" did not mean that such punishments were uncommon. At the time the book was written, every European civilization still routinely used the most barbaric, sadistic and horrific methods for the most appalling ends: torturing suspected criminals until they confessed their crimes, and inflicting appalling physical and psychological torments on the convicted.

It's easy to forget, today, that Europe once made widespread, unremarked use of flogging, stocks, breaking on the wheel, burning at the stake, the heretic's fork, knee splitters, the rack, the thumbscrew, and various other sadistic forms of punishment for a staggering array of crimes, including both victimless offenses like blasphemy and imaginary offenses like witchcraft.

When Beccaria decried such practices, he argued not that they were uncommon - after all, it was their very commonness to which he objected - but rather that they were offensive to contemporary Enlightenment ideas about fairness, civility and efficacy in the administration of justice.

In the case of Aaron Swartz, the threat of 50 years in federal prison and a million dollars in fines for downloading a bunch of academic papers cannot reasonably be considered to be anything other than "excessive" or "cruel and unusual".

Apologists for the US prosecutors who brought the case against him are arguing that he was offered a plea bargain that would likely result in only six months of prison time.

Carmen M. Ortiz, the US Attorney for Massachusetts who brought the case against Swartz, issued a public statement yesterday that defended her office's actions on the grounds that the plea bargain offered "sought an appropriate sentence that matched the alleged conduct."

Ortiz insisted, "At no time did this office ever seek - or ever tell Mr. Swartz's attorneys that it intended to seek - maximum penalties under the law."

However, this spectacularly misses the point: Swartz would only be entitled to a reasonable expectation of leniancy in exchange for pleading guilty.

I will set aside the contention that even a day of time in a federal prison is disproportionate for what amounts to a TOS violation, and instead focus on the fact that a short prison term would only come with a guilty plea.

The prosecutor used the threat of 35-50 years in prison to get Aaron to accept a guilty plea. If he chose to plead not guilty and attempt to defend himself, it would cost well over a million dollars in legal fees, and if he were found guilty anyway, the judge would be strongly predisposed to make an example of him by giving him a very long, punitive sentence.