Justice is not Law, Law is Not Justice
by Ian Welsh
2013 January 16
A law is deserving of respect to the extent, and only to the extent, it is just. A law which is not just deserves only the level of obedience one gives to any group or individual who says “do this, or I’ll hurt you.” That is, to the extent that you believe their threat is credible, you may choose to obey to avoid the adverse effects of being caught disobeying.
The recent imbroglio over Aaron Swartz has seen a lot of people using the word “proportionality”. It does not matter if someone is guilty of a crime if the punishment is disproportionate. In England the penalty for stealing a chicken, at one point, was death or being sent to a penal colony (Australia). Juries started refusing to convict people even in the face of incontrovertible evidence of the accused’s guilt. The sentencing had to be changed: stealing was no(t) made legal, rather the penalty was reduced.
Full trials, and the full protection of the law, such as it remains, now belongs only to those who are very wealthy, and sometimes not even to them. Defending a trial can take hundreds of thousand or millions of dollars. An ordinary person cannot afford it. Public defenders are overworked, underfunded, and generally plead out. This is on top of the fact that most rich criminals, such as the bankers who committed widespread fraud, are never charged with crimes, and if they are charged are allowed to settle with a token payment which immunizes them from further charges for their criminal acts, acts which demonstrably cost hundreds of thousands of people their houses, lost people their jobs, and even their lives. Law which is enforced only against some classes of people, and not against others, is unjust.
A social system only works if there are people willing to carry it out. The USSR collapsed when the people running it were unwilling to call out the army. That same class of people, in the Prague Spring, did call the army out. It collapsed because the factory workers weren’t working, the farmers weren’t farming, and so on.
The US legal system (it does not deserve to be called a justice system) works because people carry out its dictates. The people who run the prisons put up with, or even encourage the rapes. Private companies make money from prisoners, so need more prisons. The police make huge amounts of money by seizing the assets of “criminals” before they are even convicted. The judges put up with the 3 strikes laws and mandated sentencing. They allow trials to be put back and back rather than throwing them out due to lack of a speedy trial. Everyone get onside with plea bargaining. The rich are good with this because they either get a real trial, or they don’t get charged at all. The middle class think that if they’re “good” they’ll be ok, till they find out otherwise, and the poor put up with it because of a boot in the face and much more.
The principles of fixing the system (never use the word reform, it means making things better for the rich and worse for everyone else) are simple enough. No secret evidence. No secret laws. No secret interpretations of law. No tolerance of rape in prison. Nobody gets plead out if the plead involves doing jail time or becoming a felon. No criminal record checks for jobs which don’t really really need them, so that prisoners can reintegrate into society. End civil forfeiture. Allow no private defense attorneys, everyone uses a public defender including the rich, and the defenders are drawn by lot (they will be very well funded very quickly, and they will be the best lawyers in the country.) All this will make enforcing current laws impossible with the current budgets Fine. Give judges back discretion, remove three strike laws and overly harsh sentencing, repeal virtually all prohibition laws for most classes of drugs. Stop sending people to jail for IP offenses, and create an economy which gives poor people real jobs.
There is no justice without proportionality, no justice in a land with secret laws, no justice in a country where the rich skate and the poor plead out. There is only law, the same law the Stasi proclaimed: do what we say or else.
Carmen Ortiz and Stephen Heymann: accountability for prosecutorial abuse
Glenn Greenwald, The Guardian
Wednesday 16 January 2013 06.40 EST
Whenever an avoidable tragedy occurs, it’s common for there to be an intense spate of anger in its immediate aftermath which quickly dissipates as people move on to the next outrage. That’s a key dynamic that enables people in positions of authority to evade consequences for their bad acts. But as more facts emerge regarding the conduct of the federal prosecutors in the case of Aaron Swartz – Massachusetts’ US attorney Carmen Ortiz and assistant US attorney Stephen Heymann – the opposite seems to be taking place: there is greater and greater momentum for real investigations, accountability and reform. It is urgent that this opportunity not be squandered, that this interest be sustained.
The Wall Street Journal reported this week that – two days before the 26-year-old activist killed himself on Friday – federal prosecutors again rejected a plea bargain offer from Swartz’s lawyers that would have kept him out of prison. They instead demanded that he “would need to plead guilty to every count” and made clear that “the government would insist on prison time”. That made a trial on all 15 felony counts – with the threat of a lengthy prison sentence if convicted – a virtual inevitability.
Just three months ago, Ortiz’s office, as TechDirt reported, severely escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which “carrie(d) the possibility of a fine and imprisonment of up to 10-20 years per felony”, meaning “the sentence could conceivably total 50+ years and (a) fine in the area of $4 million.” That meant, as Think Progress documented, that Swartz faced “a more severe prison term than killers, slave dealers and bank robbers”.
Swartz’s girlfriend, Taren Stinebrickner-Kauffman, told the WSJ that the case had drained all of his money and he could not afford to pay for a trial. At Swartz’s funeral in Chicago on Tuesday, his father flatly stated that his son “was killed by the government”.
(A)s CNET’s Declan McCullagh detailed in a comprehensive article this morning, it is Ortiz who “has now found herself in an unusual – and uncomfortable – position: as the target of an investigation instead of the initiator of one.” And that’s exactly as it should be given that, as he documents, there is little question that her office sought to make an example out of Swartz for improper and careerist benefits. Swartz “was enhancing the careers of a group of career prosecutors and a very ambitious – politically-ambitious – U.S. attorney who loves to have her name in lights,” the Cambridge criminal lawyer Harvey Silverglate told McCullagh. Swartz’s lawyer said that Heymann “was going to receive press and he was going to be a tough guy and read his name in the newspaper.”
Ortiz and Heymann continue to refuse to speak publicly about what they did in this case – at least officially. Yesterday, Ortiz’s husband, IBM Corp executive Thomas J. Dolan, took to Twitter and – without identifying himself as the US Attorney’s husband – defended the prosecutors’ actions in response to prominent critics, and even harshly criticized the Swartz family for assigning blame to prosecutors: “Truly incredible in their own son’s obit they blame others for his death”, Ortiz’s husband wrote. Once Dolan’s identity was discovered, he received assertive criticism and then sheepishly deleted his Twitter account.
Clearly, the politically ambitious Ortiz – who was touted just last month by the Boston Globe as a possible Democratic candidate for governor – is feeling serious heat as a result of rising fury over her office’s wildly overzealous pursuit of Swartz. The same is true of Heymann, whose father was Deputy Attorney General in the Clinton administration and who has tried to forge his own reputation as a tough-guy prosecutor who takes particular aim at hackers.
The US has become a society in which political and financial elites systematically evade accountability for their bad acts, no matter how destructive. Those who torture, illegally eavesdrop, commit systemic financial fraud, even launder money for designated terrorists and drug dealers are all protected from criminal liability, while those who are powerless – or especially, as in Swartz’s case, those who challenge power – are mercilessly punished for trivial transgressions. All one has to do to see that this is true is to contrast the incredible leniency given by Ortiz’s office to large companies and executives accused of serious crimes with the indescribably excessive pursuit of Swartz.
In most of what I’ve written and spoken about over the past several years, this is probably the overarching point: the abuse of state power, the systematic violation of civil liberties, is about creating a Climate of Fear, one that is geared toward entrenching the power and position of elites by intimidating the rest of society from meaningful challenges and dissent. There is a particular overzealousness when it comes to internet activism because the internet is one of the few weapons – perhaps the only one – that can be effectively harnessed to galvanize movements and challenge the prevailing order. That’s why so much effort is devoted to destroying the ability to use it anonymously – the Surveillance State – and why there is so much effort to punishing as virtual Terrorists anyone like Swartz who uses it for political activism or dissent.
The law and prosecutorial power should not be abused to crush and destroy those who commit the “crime” of engaging in activism and dissent against the acts of elites.