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Prosecutors Sought 30 Years for Swartz's JSTOR Download, 35 for Headley's Mumbai Massacre

01/30/2013 11:41 am ET | Updated Apr 01, 2013

Aaron Swartz was facing 30 years for the unauthorized downloading of JSTOR articles; David Headley will serve the same number of years for plotting the killing of 163 people. The difference between the government's approach to the two men shows the tiny role that "actual harm caused" matters in the criminal justice system, and testifies to the increasingly unaccountable power of the U.S. prosecutor.

By now, everyone knows the story of Swartz, the idealistic Internet activist who tried to "liberate" millions of for-pay academic articles, was relentlessly pursued by the federal government with the cooperation of MIT, and ultimately killed himself.

But the Swartz case becomes even more scandalous when contrasted with prosecutors' recent conduct in the case of David Headley, the American Islamist who plotted the brutal 2008 attacks in Mumbai in which hundreds of civilians were casually gunned down. On the state's recommendation, Headley has just been sentenced in federal court to 35 years for helping to plot the al-Qaeda-linked attacks. Headley had conducted the extensive surveillance and scouting missions in India that made the killings possible.

But though David Headley was an admitted terrorist with a crucial role in "India's 9/11," the U.S. government did not choose to assassinate him via drone, shoot first and dump his body in the sea later, or even arrange a loaded court proceeding for him -- the usual approaches.

Headley is different, because he had for some time been a paid informant of the United States government, working for the Drug Enforcement Agency and sent to Pakistan in that capacity, "despite a warning that he sympathized with radical Islamic groups." The New York Times quotes an "American official" as saying "he was talking to American agencies even as he was learning to deal with explosives and small arms in terrorist training camps." A full investigation by ProPublica into Headley's background and time with the government reveals that before Mumbai "Headley's past with the drug agency influenced the FBI's decision that he was not a threat," that even after Mumbai the government has treated him as a cooperator, and that an internal review of the American government's relationship with Headley has been conducted but that "the DNI has declined to discuss the findings."

Now, in a pattern of overlooking Headley's crimes when its own interests are served, the government not only agreed not to seek the death penalty, but agreed to recommend a sentence that would see him released in his 70s. The sentence was offered in exchange for further cooperation, in continuance of the fond attitude and blind eye the U.S. has been willing to extend to Headley since the 1990s. "No negotiating with terrorists" is evidently not applicable to plea negotiations when national embarrassment is at stake, or US interests can be furthered.

The differences between the federal government's treatment of Swartz and Headley illustrate several basic points. First, that prosecutors' decisions over charging and sentencing recommendations often have little to do with the bare fact of the crime's severity. When a case is a potential bringer of glory and status to an office (as Swartz's was), considerations of justice can be set aside. But when a case is full of embarrassing revelations about the United States's accidental bankrolling of a terrorist, and the defendant could offer useful material, prosecutors are happy to have a sit-down chat and show their soft side ("You know, Mr. Headley, I never wanted to be a prosecutor anyway...").

Second, the Headley case show the obvious fact that it is prosecutors, rather than judges or juries (or facts), who determine sentences. Headley's judge said he does not have "any faith in Mr Headley when he says he's a changed person," and thought Headley deserved death, but that "he opted for the 35-year sentence after a motion by the government." In the Swartz case, too, negotiations over sentencing were firmly in the hands of the prosecutor, thanks to broad laws offering little restraint.

Finally, the cases show that prosecutors act totally unshielded from democratic accountability. Even House Republicans now recognize that Swartz's prosecution was a step too far, but at the time it was unfolding, Carmen Ortiz was acting with total free rein, and even the refusal of "victim" JSTOR to cooperate in the prosecution did nothing to slow it down. In Headley's case, the victims are similarly ignored. The people of India, of course, wish to see Headley extradited. This won't happen, and nor will the victims' second-best alternative, an actual proportionate sentence. The desires of victims, then, do not tend to unsettle the prosecutor's imperatives.

In fact, one doesn't need the Swartz prosecution to see the unusual leniency of the Headley deal. Just compare Headley's 35-year-sentence to the operation of America's brutally excessive drug and three-strikes laws, or even the way prosecutors typically approach other (small-time, non-"cooperative") murder defendants. Swartz makes for an interesting comparison, though, because when looked at side-by-side with Headley, his crimes appear so victimless, his prosecution so aggressive, and his potential sentence so ludicrously similar.

This is not to say that I am chanting for Headley's execution or extended confinement; in fact, I'm deeply wary of reflexive sentences of death or life without parole for serious crimes, and think nearly all offenders deserve an opportunity for reform and release. But Headley's sentence does not emerge from some genuinely merciful and rehabilitative outlook of the American prosecutor. It comes from secret negotiations over the disclosure of information to further the United States's foreign policy interests.

The two cases, then, show that how a defendant will be treated by the American criminal justice system depends entirely on how well that defendant serves the interests of the state and not at all on how many people were harmed by their actions.