The Overzealous Prosecution of Aaron Swartz

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The tragic suicide last week of Aaron Swartz, the visionary Internet activist who helped create Reddit, is being blamed in part on the zeal of the U.S. attorney whose office was prosecuting him for supposed computer crimes.

Professor Lawrence Lessig of Harvard Law School described his close friend Swartz as having been “driven to the edge by what a decent society would only call bullying.” Others pointed out that Swartz’s alleged offense — downloading scholarly papers without paying for them — was essentially victimless. The owner of the database from which the papers were taken chose not to pursue the matter.

The critics have a point. The prosecution of Swartz was ridiculous. But it’s a small part of a larger problem. There’s far too much prosecution in the U.S. And as the philosopher Douglas Husak points out in his book “Overcriminalization,” the reason we have too much prosecution is that we call too many things crimes.

By one common estimate, Congress creates new federal felonies at the rate of one a week. Husak argues that criminal liability has become less the outcome of deliberation than a habit, a bizarre bit of boilerplate tacked onto the end of statutes or regulations without a second thought. Criminal defense lawyers are fond of claiming that the average American commits two or three punishable crimes every day.

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