{"id":811,"date":"2014-06-18T10:40:34","date_gmt":"2014-06-18T14:40:34","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/hlscasestudies\/?p=811"},"modified":"2014-06-24T13:32:19","modified_gmt":"2014-06-24T17:32:19","slug":"do-prosecutorial-tactics-optimize-justice-reconsidering-discretion-in-charging-and-plea-bargaining","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2014\/06\/18\/do-prosecutorial-tactics-optimize-justice-reconsidering-discretion-in-charging-and-plea-bargaining\/","title":{"rendered":"Do Prosecutorial Tactics Optimize Justice? Reconsidering Discretion in Charging and Plea Bargaining"},"content":{"rendered":"

New Product: \u201cProsecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case<\/a>\u201d<\/em><\/p>\n

In January 2011, an Assistant United States Attorney in Massachusetts\u2019 Internet and Computer Crimes Unit was assigned a case from MIT. For months, a guest on the MIT computer network had been downloading much of the online journal database JSTOR; the magnitude and speed of downloading had disrupted JSTOR servers and caused MIT to lose access to the database for three days. Suspecting cybercrime, MIT police had asked for assistance from local authorities. It had become a federal case.<\/p>\n

\"Aaron_Swartz\"<\/a>

Aaron Swartz<\/p><\/div>\n

The suspect had been traced and apprehended. The man was 24-year-old Aaron Swartz, an Internet prodigy who had worked on the web feed known as RSS 1.0, the social news website Reddit, and other tech projects since his early teens.<\/p>\n

The prosecution offered a plea bargain involving three months imprisonment, but Swartz refused to plead guilty to any felony counts. Pre-trial negotiations intensified when the prosecution learned of the Guerilla Open Access Manifesto, authored in part by Swartz, which declared that \u201cwe need to take information, wherever it is stored, make our copies and share them with the world.\u201d In July 2011, Swartz was charged with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer; the maximum sentence was 35 years in prison, but sentencing guidelines suggested that Swartz would face either probation or five to six years in prison.<\/p>\n

A year later, a superseding indictment increased the counts. Other plea bargains were offered; the defense came back with different proposals; the negotiations reached a stalemate. Both parties had played the bargaining game and failed. Swartz would go to trial, a prospect costly for each side, and if Swartz were found guilty, the judge might issue a sentence that failed to meet the objectives of either side.<\/p>\n

Then, two years after Swartz\u2019s arrest, months before the trial proceedings would begin, Swartz committed suicide.<\/p>\n

***<\/p>\n

Swartz\u2019s family said of his death, \u201cIt is the product of a criminal justice system rife with intimidation and prosecutorial overreach.\u201d<\/p>\n

U.S. Attorney Carmen Ortiz responded to these claims. \u201cThere is little I can say to abate the anger felt by those who believe that this office\u2019s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life,\u201d she said. \u201cI must, however, make clear that this office\u2019s conduct was appropriate in bringing and handling this case. [The prosecutors] took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably.\u201d<\/p>\n

Did the prosecutors make the best decisions they could have at the time? When their plea bargain strategy failed and a suboptimal deal seemed likely, should the prosecution have changed course? What would have been the repercussions of drastically changing their strategy?<\/p>\n

The case study \u201cProsecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case\u201d explores the logic behind the controversial prosecutorial discretion in Swartz\u2019s case. Participants discuss prosecutorial decisions at five turning points: the initial charges, the pre-indictment plea offer, the indictment, subsequent plea offers, and the superseding indictment.<\/p>\n

Professors Adriaan Lanni and Carol Steiker, who developed this case for their Adjudication course at HLS, chose to teach charging and plea bargaining with the case study method because of the reflection and perspective that narratives provide. By taking participants through the decisions in the order and context in which they occurred, the case study sidesteps hindsight opinions. Participants do not merely cast judgment on the decisions made\u2014they are asked to inhabit the pressured environment facing the prosecution and think through how they would make those difficult decisions themselves.<\/p>\n

The Aaron Swartz case study affords law students a lasting example to guide their philosophy of prosecution. At the end of the class discussion, participants consider if there are systemic flaws in our nation\u2019s criminal justice, and what place prosecutorial discretion should have in that system, or if it perhaps had no place here.<\/p>\n

\u201cProsecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case\u201d and related teaching materials are available free of charge through the Case Studies website<\/a>.<\/p>\n

Elizabeth Moroney is the Case Studies Program Editorial Assistant and an author of the case.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

New Product: \u201cProsecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case\u201d In January 2011, an Assistant United States Attorney in Massachusetts\u2019 Internet and Computer Crimes Unit was assigned a case from MIT. For months, a guest on the … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":5482,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[88580],"tags":[],"class_list":["post-811","post","type-post","status-publish","format-standard","hentry","category-case-study-program-blog-posts"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p4CR8M-d5","jetpack-related-posts":[{"id":868,"url":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2014\/10\/07\/ethics-in-hindsight-the-nation-reflects-on-aaron-swartz-case-prosecutorial-discretion\/","url_meta":{"origin":811,"position":0},"title":"Ethics in Hindsight: The Nation Reflects on Aaron Swartz Case, Prosecutorial Discretion","author":"Elizabeth Moroney","date":"October 7, 2014","format":false,"excerpt":"New Product: Prosecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case (B) The B case, now available, is an epilogue to Part A, the main discussion stimulus. Part A\u00a0asks participants to consider the prosecutorial decisions and ethics of Aaron Swartz\u2019s case. Swartz was a 24-year-old Internet prodigy, charged\u2026","rel":"","context":"In "Case Study Program Blog Posts"","block_context":{"text":"Case Study Program Blog Posts","link":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/category\/case-study-program-blog-posts\/"},"img":{"alt_text":"Aaron_Swartz","src":"https:\/\/i0.wp.com\/blogs.law.harvard.edu\/hlscasestudies\/files\/2014\/06\/Aaron_Swartz-500x333.jpg?resize=350%2C200","width":350,"height":200},"classes":[]},{"id":857,"url":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2014\/09\/23\/5-questions-with-professor-adriaan-lanni\/","url_meta":{"origin":811,"position":1},"title":"5 Questions with Professor Adriaan Lanni","author":"Elizabeth Moroney","date":"September 23, 2014","format":false,"excerpt":"Product: Prosecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case HLS Professor Adriaan Lanni came to us with a vision for her criminal adjudication class: teach students the ethics and discretion of prosecution. Rather than explain landmark examples of prosecutorial discretion herself, Professor Lanni wanted students to find\u2026","rel":"","context":"In "Case Study Program Blog Posts"","block_context":{"text":"Case Study Program Blog Posts","link":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/category\/case-study-program-blog-posts\/"},"img":{"alt_text":"Lanni","src":"https:\/\/i0.wp.com\/blogs.law.harvard.edu\/hlscasestudies\/files\/2014\/09\/Lanni.jpg?resize=350%2C200","width":350,"height":200},"classes":[]},{"id":1099,"url":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2016\/04\/05\/the-classroom-experience-prosecutorial-discretion-in-charging-and-plea-bargaining-the-aaron-swartz-case-a-and-the-battle-for-unocal-case-studies\/","url_meta":{"origin":811,"position":2},"title":"The Classroom Experience: Prosecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case (A) and The Battle for Unocal Case Studies","author":"Alec Villalpando","date":"April 5, 2016","format":false,"excerpt":"Post by Logan Sawyer, Visiting Associate Professor of Law, Harvard Law School \u201cThat class was awesome,\u201d and \u201cYou should definitely do that again next year,\u201d were the first things I heard from students after the two case studies I taught in two different classes, at two different institutions.\u00a0The classes were\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/blogs.harvard.edu\/hlscasestudies\/files\/2016\/03\/Singer-4-1024x681.jpg?resize=350%2C200","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/blogs.harvard.edu\/hlscasestudies\/files\/2016\/03\/Singer-4-1024x681.jpg?resize=350%2C200 1x, https:\/\/i0.wp.com\/blogs.harvard.edu\/hlscasestudies\/files\/2016\/03\/Singer-4-1024x681.jpg?resize=525%2C300 1.5x"},"classes":[]},{"id":963,"url":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2015\/04\/28\/can-we-have-justice-in-an-imperfect-world-dsk-case-study-shows-fractured-relationship-between-justice-and-justice-system\/","url_meta":{"origin":811,"position":3},"title":"Can We Have Justice in an Imperfect World? DSK Case Study Shows Fractured Relationship between Justice and Justice System","author":"Elizabeth Moroney","date":"April 28, 2015","format":false,"excerpt":"Product: \u201cCyrus Vance and Dominique Strauss-Kahn: Dilemmas in a High-Profile Prosecution\u201d HLS Professor Jeannie Suk repurposed a discussion-based case study, \u201cCyrus Vance and Dominique Strauss-Kahn: Dilemmas in a High-Profile Prosecution,\u201d to explore the disconnect between justice and the justice system in a foundational 1L course. In her two sections of\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"Professor Jeannie Suk","src":"https:\/\/i0.wp.com\/blogs.law.harvard.edu\/hlscasestudies\/files\/2015\/04\/10869.jpg?resize=350%2C200","width":350,"height":200},"classes":[]},{"id":554,"url":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2013\/09\/17\/the-boy-who-cried-balloon\/","url_meta":{"origin":811,"position":4},"title":"The Boy Who Cried Balloon","author":"Elizabeth Moroney","date":"September 17, 2013","format":false,"excerpt":"New Product: Balloon Boy On October 15, 2009, Richard and Mayumi Heene called 911 in a panic. Their son Falcon had gone missing, as had a large metallic helium balloon housed in their backyard. Local and federal authorities conducted a highly publicized rescue effort for the \u201cUFO,\u201d but when the\u2026","rel":"","context":"In "Problem Solving Workshop Blog Posts"","block_context":{"text":"Problem Solving Workshop Blog Posts","link":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/category\/problem-solving-workshop-blog-posts\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":1069,"url":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2016\/02\/16\/united-states-v-teller-a-new-plea-bargaining-role-play-on-domestic-terrorism-hate-crimes-and-managing-principal-agent-tensions\/","url_meta":{"origin":811,"position":5},"title":"United States v. Teller – a New Plea Bargaining Role Play on Domestic Terrorism, Hate Crimes, and Managing Principal-Agent Tensions","author":"nsoubani","date":"February 16, 2016","format":false,"excerpt":"By Sam W. Straus and Robert C. Bordone United States v. Teller, a newly released negotiation role play case by Sam W. Straus and Robert C. Bordone of the Harvard Negotiation and Mediation Clinical Program (HNMCP), explores the challenges of negotiating plea bargains in the face of intense principal-agent tensions\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"jetpack_likes_enabled":true,"_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/posts\/811","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/users\/5482"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/comments?post=811"}],"version-history":[{"count":5,"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/posts\/811\/revisions"}],"predecessor-version":[{"id":821,"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/posts\/811\/revisions\/821"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/media?parent=811"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/categories?post=811"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/tags?post=811"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}