Former AUSA Orin Kerr On The Prosecution Of Aaron Swartz: “Business as usual in federal criminal cases”

“I think it’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases. Yes, the prosecutors tried to force a plea deal by scaring the defendant with arguments that he would be locked away for a long time if he was convicted at trial. Yes, the prosecutors filed a superseding indictment designed to scare Swartz evem more in to pleading guilty (it actually had no effect on the likely sentence, but it’s a powerful scare tactic). Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But it is not particularly surprising for federal prosecutors to use those tactics. What’s unusual about the Swartz case is that it involved a highly charismatic defendant with very powerful friends in a position to object to these common practices. That’s not to excuse what happened, but rather to direct the energy that is angry about what happened. If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.”

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Professor Orin Kerr is a nationally recognized scholar in the fields of criminal procedure and computer crime law. His articles have appeared in the Harvard Law Review, Yale Law Journal, Stanford Law Review, and many other top journals, often multiple times. Professor Kerr’s scholarship has been cited in over 90 judicial opinions, including decisions by the United States Supreme Court and all of the regional U.S. Courts of Appeals. In a recent study, he ranked seventh among criminal law and procedure scholars in the United States for citations in academic journals.