At this point, the DOJ should apologize, investigate internally and fire those who were involved in Aaron's case.
If they refuse and insist that this is business as usual for them then it should be legislated by the government that all previous cases involving heavy handed plea bargaining under the current DOJ staff should be re-opened and re-negotiated under saner conditions.
>I agree with Zoe Lofgren. Any DOJ apologies or measures would be insufficient. The 80s-era laws need to be changed to account for the modern world.
Completely agree, but I feel the need to publicize Orin Kerr's point about the first draft of her proposed "Aaron's Law": It would actually be a regression over what he expects the Supreme Court to do in the upcoming Nosal case, and there are better improvements to the CFAA that he articulates.[1] So let's be sure the changes we advocate are the right ones. (I assume Lofgren will become aware of this information in time, but the way she will is by enough people pointing it out that it gets through her staff, so I encourage anyone inclined to write or call her office to do so.)
>If they refuse and insist that this is business as usual for them then it should be legislated by the government that all previous cases involving heavy handed plea bargaining under the current DOJ staff should be re-opened and re-negotiated under saner conditions.
That is never going to happen because it would involve entirely too many cases. You would have a better chance of just having them all freed and put back on the streets, because at least that wouldn't be cost prohibitive, and you can imagine about how likely that is. This is notwithstanding that you are entirely right: this is clearly not justice.
I think we need to look forward rather than back. We need to fix the laws. Cut the criminal penalties drastically for all non-violent non-financial offenses and outright repeal laws against things that don't need to be illegal. Then we can legitimately argue for the release of anyone in prison for violating the laws taken off the books, and the reduction in sentence for anyone previously convicted of anything with a lowered penalty.
While Swartz' death is incredibly tragic and the prosecutors were no doubt overreaching, it isn't as simple as a quick "You're fired" to solve things.
First, prosecutorial overreach is common. Because it's so common, at the most, the DOJ will issue those involved a warning. Don't expect that to change unless people actively fight to prevent it.
Second, plea bargaining is morally wrong, either way you look at it. So is piling on charges to get the defendant to ACCEPT the plea bargain. Many countries have actually outlawed plea bargaining because of the fact. People need to take a stand to outlaw plea bargaining.
And lastly, a very disturbing trend -- have you noticed, has anyone noticed, that all the laws that continue to pass limit the rights of THE PEOPLE while continuing to extend the rights of the government? Now, I don't know how much I slept in 7th grade history, but I'm pretty sure that most amendments to the Constitution, and the laws and guidelines outlined by the Constitution itself were meant to limit the rights of THE GOVERNMENT rather than the people. You can see examples of this government overreach everywhere.
Drones.
The PATRIOT Act.
The NDAA.
Gun control (do you really think the government will stop at assault weapons?).
Congress supporting RIAA and MPAA.
DRM.
Extension of copyrights.
I could go on and on with examples, but I'll stop here. Wasting time on bipartisan politics will not help. The people have been so hypnotized by bipartisan politics that they think the situation is only black or white.
It isn't. There's an infinite number of shades of gray.
The root cause is not liberalism or conservatism. It's the nature of government itself.
An idealistic world would mean that everyone contributed to society equally. Everyone would be paid equally. Everyone would have an equal amount of everything, although . All knowledge would be shared with everyone, and no secrets would be kept between others. There would be no government and the people would rule themselves by direct democracy. Call it communism/anarchism if you wish, but it's idealism. Right now, our government is as far away from that vision as could be.
Maybe it's time we pushed for more freedom and less restriction. Perhaps then prosecution wouldn't be so quick to swing their heavy hand.
I think that's thinking small. Congress should start over by repealing CFAA and by instituting character standards for federal prosecutors to deal with the problem of careerism in the nation's departments of justice.
"At this point, the DOJ should apologize, investigate internally and fire those who were involved in Aaron's case."
This is a bit naive. Certainly it would help the DOJ's image if they did this, and certainly firing those involved would be just, but that act alone misses the point: why are prosecutors who behave like this thriving? This isn't an isolated case at all. There's a more sinister factor at work, and doing only as you suggest would cover it up.
Why would you fire someone for doing what they were hired to do? These are the people you probably want on your side. The real solution is to change their job descriptions to something reasonable. Otherwise their replacements will just do the same thing.
It is only a step in the right direction if it's not thought to have solved the problem. If it is thought to have solved the problem, then it's a step in the wrong direction, even if it means that justice has been partly served.
I.e., the real problem here is cultural. We live in a culture that creates opportunities for people like these prosecutors, and merely firing these people sweeps that under the rug so it can flourish in the future.
If they refuse and insist that this is business as usual for them then it should be legislated by the government that all previous cases involving heavy handed plea bargaining under the current DOJ staff should be re-opened and re-negotiated under saner conditions.
This is clearly not justice.
Aaron Swartz himself wrote about this kind of situation: http://www.aaronsw.com/weblog/semmelweis