They have always been us

An individual has not started living until he can rise above the narrow confines of his individualistic concerns to the broader concerns of all humanity.

It’s been 10 days since Aaron Swartz killed himself, facing down the barrel of a gun pointed by within-their-rights-but-a-tad-too-zealous federal prosecutors. Plead to 13 felonies and we’ll recommend “only” 6 months in jail, he was told. His apparent crime was of such magnitude and caused such harm that civil disobedience was not seen for and treated as it was.

Swartz was many things that are better left to others (and I’m sure you’ve read them all by now), but the growing sentiment is that he was also a victim. Despite being a defendant, he was the victim of a criminal justice system that was too harsh. On him. He’s being hailed as a hero; a martyr; the future of disobedience and because of that, an example to be made.He’s the catalyst for change: for alterations to the federal statute and for closer scrutiny of the DOJ (albeit the latter is probably more political than anything). And undeniably, the din of criticism of prosecutorial discretion in this case is loud (make sure you read this lengthy piece by Radley Balko on the power of the prosecutor and this one by Glenn Greenwald: there aren’t two people who’re doing more good work on the ever-growing unchecked power of the state).

To all of you who’ve been engrossed by the above; shocked by it, angered, even, I say: welcome to the real world. Welcome to the world that’s existed around you for decades, but that you’ve been too blind to see.

Because Aaron Swartz wasn’t special. Not in that sense. He was just like every other criminal defendant that walks through the doors of every courthouse in America: a conviction waiting to happen. He was an opportunity for someone to flex their muscle over; for someone to teach a lesson to; for a system to fail to live up to its promise. Aaron Swartz is no different that the guy who sat in jail for 5 years waiting for a trial, or the guy who was arrested 20 years after the crime and the Supreme Court changed substantive law just to ensure that he was prosecuted, or the guy in whose case the judge texted the prosecutor questions to ask, or the man who refuses to give up his First Amendment rights and keeps getting arrested or the inmate who loses his appeal because his lawyer didn’t file the right paperwork and the courts don’t care, or Ronald Cotton or Cameron Todd Willingham, or maybe tomorrow: you. In the eyes of the law, there was no difference between any of them: their crimes may have been disparate; their rights all the same to eviscerate.

This happens every day: we have less rights today than we did 10, 15, 20 years ago. And they keep getting curtailed. Because you don’t care. Don’t look at me; I care. I scream about it on this blog every chance I get. But you don’t listen. Because it doesn’t happen to you. It doesn’t happen to people you know. It doesn’t happen to people you like. Because they aren’t you.

First they came for the terrorists, and I didn’t speak out because I wasn’t a terrorist. Then they came for the criminals, and I didn’t speak out because I wasn’t a criminal. Then they came for the people they didn’t like, and I didn’t speak out because I wasn’t one of them… well, shit, there’s no one left but you and me.

There are only two kinds of people: those that they’ve come for and those that they’re coming for. And now what? Now that they came for your savant, your gentleman hacker; your prodigy and he took his life; what’s next? Why do you think they won’t come for you? What makes you that much better able to fend off their might? [Update: And when Carmen Ortiz says she won’t do business any differently, do you think she’s joking? Do you want to be the next defendant she’s prosecuting?

And while it speaks volumes about her ego, her position is the clearest indication that it wasn’t Aaron Swartz’s case that was singled out for preferential treatment. This is how they do business. In every case. And if you think that there was injustice in Swartz’s case, then doesn’t it stand to reason that there’s injustice in the murderer’s case or the rapist’s case or the bank robber’s case?]

If you’ve started caring now, will you stop? Or have you finally realized that “they” have always been “us”? That we’re one overzealous officer or one slightly difficult prosecutor away from being Aaron Swartz. Aaron Swartz became one of “them”. Which one are you?


The quote that starts this post is by Dr. Martin Luther King, Jr.

27 thoughts on “They have always been us

  1. Miranda

    Ever since I started practicing criminal defense, I’ve dealt with people who don’t like what I do and who believe it will never happen to them. I’m amazed, as I always assume it will happen to me. Why is that? Is that what makes someone seek out criminal defense? I’m white, female, middle class. If anyone can assume that they won’t fall on the bad side of the criminal law, it would be me. But I don’t feel safe. I don’t feel like it will never happen to me or someone I love.
    Shortly after I got my first job as a public defender, my parents’ pastor asked how my job as a DA was going. I told him I wasn’t a DA, but a PD. He said, “but you want to be a DA, right? You’re only doing this job so you can become a DA?” I told him that I never want to be a DA. He couldn’t believe that I help “those people.” I said that if one of his sons was arrested, he’d want a good lawyer representing them. He said that if one of his sons was arrested, he wouldn’t pay a penny for a lawyer and his son should get the max. Well, I politely excused myself (it was at my parents’ anniversary party after all and I didn’t trust myself to continue in civil conversation with this idiot), and thought, you’re either a fool or a complete sociopath. But was he? Or did he just have this firm, boarding-on-delusional belief that this won’t happen to him?

    1. Gideon Post author

      Methinks he doth protest too much.

      I think anyone who fails to comprehend the job that we do – and why we do it – is in denial about how close they are to needing our help.

      1. Nick

        I had a client who was truly falsely accused of a battery. I had witnesses, etc basically saying the complaining witness was full of shit. Better the witnesses were the right people (retired cops).
        So the DA dismisses the case, admits factual innocence. My client is really happy, but then goes on a rant about how when he is on a jury he will do the right thing and convict them.
        Not a facepalm big enough.

  2. Nick

    The problem is that prosecutors have no concept of what jail or prison means. Even if you remove the horrible violence or sexual assault, incarceration really is just a waste of life. Even if you’re “just” talking 6 months or even 20 days, the impact is real and damaging. Jobs get lost, cars get repoed, evictions occur. And even when someone is stable and lucky enough to avoid all that, it is simply 6 months of your life you will never get back. I’d consider it akin to having someone die 6 months sooner than they should have. In any other setting that would be despicable, even if you had committed a crime like possession.

    An then there is the pervasive view that incarceration will do something positive. I currently work in an alternative court that is supposed to consider only “evidence based” techniques. And yet, probation and DAs will continue to default to jail because they believe that somehow if 30 days in the jail didn’t fix the guy, 2 months might! (I’m just glad the legislature actually took away their power to put people in for a long time).
    In this case, i wonder exactly what they though 6 months and a felony conviction would accomplish. We take a bright young man and put him through 6 months of hell. We delay, defer and maybe prevent higher education. And he gets saddled with a federal felony conviction. Employers will love that.
    Give the guy a misdo probation offer or even a dismissal after a year or so. Bet you’ll never see him again.
    Give him a felony and after he finds out about the student aid he now can’t get puts his talents in working for groups that care a bit less about felonies.

      1. Nick

        Kind of like a parole court, but allegedly better. It doesn’t work as well as we’d like, but better than traditional parole courts.
        Basically, California got sick of paying to keep so many people in prison on parole violations, so they created PRCS. It is supposed to use incarceration less and things like drug treatment and mental health care more.

          1. Nick

            It is just a court for trying parole violations. ideally, mine is more enlightened than they used to be when they just put people in prison for a year for failure to report.

        1. Gideon Post author

          Although I do remember hearing somewhere that someone did a study that showed that it was better to give first time violators a hefty sentence rather than piecemeal it, because it scared them straight, etc.

          1. Nick

            I’m not sure I’d buy that.
            My guys have already been to prison and have been released.
            California had mandatory 3-4 years parole after a state prison sentence.
            It used to be per violation, they could do up to 12 months state per violation.
            Now they can only use 90d per violation in county. They’re also supposed to do a whole bunch of things before they put them in jail

  3. Miranda

    Yes, he’s a pastor. A pastor of a Missionary Baptist Church in Texas. Think along the lines of Pat Robertson and Jerry Falwell. He was a small man. I left that church when I left for college and never went back. He also eventually left but not without inflicting considerable damage on the church and its members.

    It never fails to strike me as odd that people who claim to worship Christ would be so anti-criminal defense. I mean, the man was executed on bullshit charges in a corrupt system. You’d think that would give them some perspective.

  4. Pingback: A matter of perspective | a public defender

  5. Pingback: A call to those who may be too far to hear us just yet. | Not Guilty No Way

  6. Pingback: Issue No. 148 – January 25, 2013

  7. Pingback: J’Accuse, or: why you really shouldn’t trust the government | a public defender

  8. Pingback: No solution at all | a public defender

  9. Pingback: Reforming prosecutions | a public defender

  10. Pingback: Micromanagement | The Honest Courtesan

  11. Pingback: Best Criminal Law Blawg Post, 2013 | Simple Justice

  12. Pingback: Money Makes The World Go ‘Round | Simple Justice

Leave a Reply