"The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office. It was the government’s decision whether to prosecute, not JSTOR’s. As noted previously, our interest was in securing the content. Once this was achieved, we had no interest in this becoming an ongoing legal matter."
So it's not as if anybody outside the government was still pressing charges over this.
Judges, United States Attorneys, they could have all put a stop to this, instead they allowed it to roll on destroying a life in the process, regardless of what Aaron did to himself or not.
Prosecutors can usually act on their own initiative. It's because of the historical legal concept that an offence against a person is really an offence against the Crown. So the Crown takes a legal monopoly on force and logically, this means that the Crown gets to decide what to pursue. The USA inherited this concept from England.
What I was trying to say above is that a prosecutor's goal is to prosecute as many cases as fully as possible. They do not consider whether it is meritorious to pursue a case according to some outside moral standard, that's not their job. Most of the time cases are picked if there's strong evidence.
I know you want to imagine that the DOJ prosecutors were some sort of Disney villains, according to a moral standard that they themselves do not abide by. A good man is dead, we all want somebody to kick.
But the place to make an argument that a case is flawed, or that a case is irrelevant, or repugnant to the letter or the spirit of the law, it's not in the prosecutor's office. It's in front of the judge.
As you can see I'm not a firm believer in the 'this is my job so I do what I'm told' concept.
Everybody - including prosecutors - gets to decide what they do for themselves. If your job is so repugnant that you go after good people you have to question your own morality. Just following orders isn't good enough for me.
That you have a different criteria for what cases to prosecute doesn't make them evil.
Oh, but it does -- it makes them morally questionable in -- at least -- jacquesm's eyes (note, he didn't use the term "evil").
How else would you decide that someone's actions are morally dubious, other than using your own moral criteria? By consulting a lawyer? Running a popular vote?
> They would have been doing what they think is the _right thing_ to do: prosecute suspects aggressively
Or the "thing" that improves their career, or annual review.
Let's see: Essentially defenseless hacker-type, historical success of draconian prosecution strategies, and penalties /way/ outside the realm of reason because of fanned-up hyperbole, fear and misunderstanding in the criminal justice system.
Low-hanging fruit, to a prosecutor. Three before breakfast every day. Aaron probably did not _matter_ once he was in the system.
Cases won versus cases lost. In this one, we all lost.
> What I was trying to say above is that a prosecutor's goal is to prosecute as many cases as fully as possible. They do not consider whether it is meritorious to pursue a case according to some outside moral standard, that's not their job.
I have no idea what the situation is in the US. But here in England that's just not true.
The CPS (Crown Prosecution Service)'s job is not to bring all the prosecutions that it believes it can win. It's to bring all prosecutions that it believes it can win that it's in the public interest to be brought. (http://www.cps.gov.uk/publications/code_for_crown_prosecutor...)
The result is that CPS discretion is an important part of the system. And has the side-effect that the legislature has less incentive to narrow the scope of offences, since they believe (rightly or wrongly) they can rely on the CPS to not bring prosecutions where it wouldn't make sense to do so.
(Hence e.g. there's little pressure to amend the Sexual Offences Act with US-style 'romeo and juliet' laws to protect teenage couples who are technically both sexually assaulting each other, since the CPS guidelines (http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/...) in practice have the same effect).
Whether this system is better or worse than one where the prosecutor doesn't use discretion, but offences are defined more strictly, is an interesting discussion.
The situation in the US is this: prosecutors advance their careers by winning cases. It makes no difference whether or not the cases serve the public interest or even if those who are convicted are guilty. There are a lot of people in America -- possibly a majority -- who love the "law and order" approach to government and who will vote for a lawyer-turned-politician who runs on a right-wing platform and points to his history of throwing people in prison. If you want to see just how out-of-control this can get, read about the Kern County child sex abuse prosecutions from the 1980s, where one prosecutor proudly put dozens of innocent men and women in prison for crimes that never happened.
There is also an established system of prosecuting people the government does not like, and of robbing them of their ability to build a good defense -- usually by freezing their assets before they have been convicted, and building enormous cases against them that overwhelm their attorneys. I suspect Swartz was a victim of these tactics, probably because the government wanted to drive home the message that human knowledge must remain locked behind university firewalls and that hacking is a heinous offense. I would not put it past them to include Swartz' suicide in future propaganda about copyrights, as evidence that copyright infringement leads people to depression and suicide.
> an offence against a person is really an offence against the Crown
This is also common sense. If not, it would be difficult to prosecute murderers, since the victim doesn't exist anymore. It would be next to impossible to prosecute murderers of people who have no family and no friends.
In the actual UK, the "public interest" is the decider of whether the state prosecutes when it has enough evidence. The way you phrase it, you make it sound like the only criterion is likelyhood of conviction (i.e. strength of evidence).
A prosecutor's duty and role is to seek justice[0]. Justice isn't always black and white, but it certainly isn't applying the toughest charges that could possibly be made to stick nor seeking the highest possible penalty in every case. The prosecutor should attempt to determine what a just outcome to a case would be, then seek to achieve it.
I would agree with you if the separation of powers would work flawlessly, but it seems to me that even in many modern democracies, prosecutors have the means to do things that are quite punishing.
They're not the same.