Often it takes a rare injustice perpetrated against a privileged young person for our society to recognize the common injustices we visit every day upon less-privileged minorities. That should be the case again this week as we mourn the tragic death of the computer prodigy and progressive activist Aaron Swartz.
Aaron's story has been retold countless times in the media recently, in tribute to the many lives he touched and the impact he left. (Note: I had the privilege to work with Aaron at Avaaz, and I write this in the spirit of his commitment to social justice.) A precocious tech whiz, Aaron also suffered from depression and was being prosecuted by a Javert-like U.S. Attorney's Office for downloading too many free academic articles when he took his own life at the age of 26. Aaron's family has laid blame for his passing, in part, at the prosecutor's doorstep.
The community to which Aaron belonged has been rightfully outraged as well at the overreach involved in charging him with 13 felony counts carrying up to 35 years in prison. Harvard professor Lawrence Lessig lambasted "the absurdity of the prosecutor's behavior." In The Guardian, Dan Gillmore wrote of "seething at Aaron's prosecution by a federal government that has rewarded torturers and banksters while in this case twisting the law to turn what amounts to minor trespassing into a 'crime' worthy of decades in jail." And MSNBC host Chris Hayes noted that Carmen Ortiz, the U.S. Attorney who prosecuted Aaron, may have higher political aspirations, seemingly hinting that should she try to attain those, the friends of Aaron will remember and will be there.
I share their anger that a prosecution like this was carried out by lawyers presenting themselves in court as representing the United States of America. But I'm also troubled that it's often when the unfairness of our criminal justice system comes crashing down on someone like Aaron that we take the time to question what's being done by prosecutors every day in our name, much more often to communities of color.
Last year, United States District Judge John Gleeson sentenced Jamel Dossie, a 23-year-old with a substance abuse problem, to five years in prison for allegedly being a "leader" or "manager" of a criminal drug enterprise. Though Judge Gleeson wrote that, Dossie was nothing of the sort. Instead, he was the child of a drug-addicted father who himself became addicted to drugs at 16 and had no history of violence. He was arrested for being a low-level lackey who made $140 passing crack from one person's hand to another in order to support his addiction.
But the prosecutor, Brooklyn Assistant U.S. Attorney Zainab Ahmad, used her discretion to invoke a mandatory minimum sentence of five years because of the amount of crack Dossie had sold, even though there was no other evidence suggesting he was a manager or leader of anything. An act which Judge Gleeson explained "forced me to impose a five-year jail term on him" despite wanting to order him into a treatment program instead.
Gleeson used the Dossie case to write a scathing memo to Attorney General Eric Holder asking him to use discretion that is well within his power to curb a practice that happens every day in our criminal justice system: prosecutors invoking overly harsh mandatory minimum sentences for low-level non-violent drug offenders, many of whom are minorities (even though minorities are statistically no more likely to use or sell drugs than whites). So far, Holder has yet to respond.
Prosecutors lobby for and implement these overly harsh sentences because they see them not as a proportional response to the crime at issue, but because they're useful leverage to force petrified defendants to flip and testify against others. This is not how the justice system is supposed to operate. Judge Gleeson asked Ms. Ahmad why she was invoking the mandatory minimum. She struggled to offer a convincing reply. As a resident of the district she represents, I'd like to ask her the same question.
Jamel Dossie is now serving five years in prison and is more likely to come out a hardened criminal than an addict in recovery. There are thousands more out there like Dossie -- people whose lives have been turned upside down by a justice system so driven by public demand for "law and order" that we've lost all sight of proportionality and we're often creating more criminal behavior than we're deterring or reforming. This is having a particularly devastating impact on African-Americans, more of whom are under some form of control by our criminal justice system today than were enslaved in 1850. As a result in part of prosecutorial overreach, America currently incarcerates more people than any country on earth now or at any point in human history.
Aaron Swartz might have been one of them. And as we mourn his passing, it's important that his story is also leading us to reflect on the fairness of his prosecution. There's even a petition on the White House website right now to fire Ms. Ortiz that has garnered more than 40,000 signatures. But let's not forget that there's no petition for Jamel Dossie. I suspect Aaron would find that unjust.
We need a movement in this country to begin to question the zeal of our prosecutors to rack up more convictions and more years of incarceration regardless of whether doing so is making us safer or could be considered fair -- in Aaron's case, in Jamel's and in countless others.
That's why that petition is a good thing. Not because Ortiz or her staff are necessarily bad people. Zainab Ahmad likely isn't a bad person either. Many prosecutors are committed public servants doing us a noble service and I suspect Ortiz and Ahmad were trying to do the same. But for too long our dominant public message to them as a society has been: put away more people for longer periods of time and we'll reward you with promotions. What a sea change it would be if, as a result of Aaron's passing, a public movement began that said: if you misuse your prosecutorial discretion, the public will rebel against you and cut your political career short. That would be a tremendous thing.
President Obama recently told Time Magazine that:
"there's a big chunk of that prison population that is involved in nonviolent crimes. And it is having a disabling effect on communities. ... I think we have to figure out what are we doing right to make sure that that downward trend in violence continues, but also are there millions of lives out there that are being destroyed or distorted because we haven't fully thought through our process?"
I hope Aaron's final heroic act will be forcing us to really address that question.