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"after JSTOR itself had dropped the charges" From a practical matter a prosecutor might decline to prosecute if they can't get the cooperation of someone (need

by larrys 14y ago

"after JSTOR itself had dropped the charges" From a practical matter a prosecutor might decline to prosecute if they can't get the cooperation of someone (needed to testify or provide evidence) but this should have no bearing on whether to prosecute or not. You could have a crime committed and the crime is worthy of prosection. The fact that someone believes (as an extreme example) that a person who committed assault against them shouldn't be prosecuted doesn't and shouldn't really matter (keeping in mind of course the practical nature of prosecuting without cooperation). Unless of course they say "no assault occured" which is different then "assault occurred but I don't want anything done".

drzaiusapelord 14y ago
>but this should have no bearing on whether to prosecute or not. "We were just following orders" and "We were just doing our jobs" and "We were doing what the law told us to do" aren't the indefensible moral positions you seem to think they are. Laws are written by men and enforced by men. Just the idea that all prosecutors are slaves to these laws is so incredibly naive I almost don't know what to say to you, but I'll try to sum it up: At best, this was a simple copyright issue that the two parties chose to work out. At worst, this was a white collar crime, and with all white collar crimes, your political capital determines what happens to you. Aaron had no political capital. The support of people like Lessig or Doctorow or the EFF is meaningless in DC. Carmen Ortiz understood this. Now here we are.
- larrys 14y ago
  "Just the idea that all prosecutors are slaves to these laws is so incredibly naive I almost don't know what to say to you" You are implying things that I did not say. Please quote specifically what I said that gives you the impressions that I am "so incredibly naive". In other words indicate where I said or implied that prosecutors don't have discretion and what that has to do with what I did say which had to do specifically with the person "harmed".
- davidp 14y ago
  > "We were just following orders" and "We were just doing our jobs" and "We were doing what the law told us to do" aren't the indefensible moral positions you seem to think they are. Careful; that's a double-edged sword. Would you prefer that individual prosecutors have the authority to ignore the law? That didn't work too well in the pre-civil-rights South, when lynchings went unprosecuted. It's far better to have a government of laws and not a government of men; then you can assign responsibility where it belongs, with the people who write the laws.
  - drzaiusapelord 14y ago
    >It's far better to have a government of laws and not a government of men Who do you think decided to tell JSTOR to shove it and prosecute him anyway under a federal computer crimes act? All prosecution is political and white collar crimes doubly so. Men decide to be vindictive, men decide which laws, and the men who prosecute knowing it takes millions of dollars to successful defend from a false accusation from the federal government. We don't live under laws. We live under men. There's no politically neutral AI calling the shots. Its people trying to get promotions and making names for themselves and who knows what other motivations. The selfless prosecutor exists only in movies and TV.
    - rprasad 14y ago
      All prosecution is political and white collar crimes doubly so. No, all laws are political. Enforcement of the law, especiallly at the federal level, is apolitical. White collar crimes are not special; indeed, white collar crimes are by far the worst types of crimes because they strike directly at the foundation of the system itself (i.e., trust). There's no politically neutral AI calling the shots. Exactly. Letting prosecutors pick and choose which statutes they enforce would make prosecution political. This is what happened in the South for 100 years when blacks were prosecuted aggressively and white defendants were not (especially in cases with black victims). It's also the reason why prosecutors at the federal level generally do not have discretionary authority to decide what crimes they will enforce absent a presidential directive or a directive from the head of their agency.
- temphn 14y ago
  Exactly. The DC police made the (correct) decision recently to use prosecutorial discretion to not pursue David Gregory, who DID have juice in DC. http://www.huffingtonpost.com/2013/01/11/david-gregory-investigation-gun-magazine-no-prosecution_n_2458945.html http://www.huffingtonpost.com/2013/01/11/david-gregory-inves... Having carefully reviewed all of the facts and circumstances of this matter, as it does in every case involving firearms-related offenses or any other potential violation of D.C. law within our criminal jurisdiction, OAG has determined to exercise its prosecutorial discretion to decline to bring criminal charges against Mr. Gregory, who has no criminal record, or any other NBC employee based on the events associated with the December 23, 2012 broadcast. It would have been nonsensical to go after Gregory. He only got the benefit of the doubt because he was a DC political journalist who was literally interviewing Obama last week. And it was nonsensical to go after Swartz. But he did not get the benefit of the doubt.

by larrys 14y ago

drzaiusapelord 14y ago

>but this should have no bearing on whether to prosecute or not. "We were just following orders" and "We were just doing our jobs" and "We were doing what the law told us to do" aren't the indefensible moral positions you seem to think they are. Laws are written by men and enforced by men. Just the idea that all prosecutors are slaves to these laws is so incredibly naive I almost don't know what to say to you, but I'll try to sum it up: At best, this was a simple copyright issue that the two parties chose to work out. At worst, this was a white collar crime, and with all white collar crimes, your political capital determines what happens to you. Aaron had no political capital. The support of people like Lessig or Doctorow or the EFF is meaningless in DC. Carmen Ortiz understood this. Now here we are.

larrys 14y ago
"Just the idea that all prosecutors are slaves to these laws is so incredibly naive I almost don't know what to say to you" You are implying things that I did not say. Please quote specifically what I said that gives you the impressions that I am "so incredibly naive". In other words indicate where I said or implied that prosecutors don't have discretion and what that has to do with what I did say which had to do specifically with the person "harmed".
davidp 14y ago
> "We were just following orders" and "We were just doing our jobs" and "We were doing what the law told us to do" aren't the indefensible moral positions you seem to think they are. Careful; that's a double-edged sword. Would you prefer that individual prosecutors have the authority to ignore the law? That didn't work too well in the pre-civil-rights South, when lynchings went unprosecuted. It's far better to have a government of laws and not a government of men; then you can assign responsibility where it belongs, with the people who write the laws.
- drzaiusapelord 14y ago
  >It's far better to have a government of laws and not a government of men Who do you think decided to tell JSTOR to shove it and prosecute him anyway under a federal computer crimes act? All prosecution is political and white collar crimes doubly so. Men decide to be vindictive, men decide which laws, and the men who prosecute knowing it takes millions of dollars to successful defend from a false accusation from the federal government. We don't live under laws. We live under men. There's no politically neutral AI calling the shots. Its people trying to get promotions and making names for themselves and who knows what other motivations. The selfless prosecutor exists only in movies and TV.
  - rprasad 14y ago
    All prosecution is political and white collar crimes doubly so. No, all laws are political. Enforcement of the law, especiallly at the federal level, is apolitical. White collar crimes are not special; indeed, white collar crimes are by far the worst types of crimes because they strike directly at the foundation of the system itself (i.e., trust). There's no politically neutral AI calling the shots. Exactly. Letting prosecutors pick and choose which statutes they enforce would make prosecution political. This is what happened in the South for 100 years when blacks were prosecuted aggressively and white defendants were not (especially in cases with black victims). It's also the reason why prosecutors at the federal level generally do not have discretionary authority to decide what crimes they will enforce absent a presidential directive or a directive from the head of their agency.
temphn 14y ago
Exactly. The DC police made the (correct) decision recently to use prosecutorial discretion to not pursue David Gregory, who DID have juice in DC. http://www.huffingtonpost.com/2013/01/11/david-gregory-investigation-gun-magazine-no-prosecution_n_2458945.html http://www.huffingtonpost.com/2013/01/11/david-gregory-inves... Having carefully reviewed all of the facts and circumstances of this matter, as it does in every case involving firearms-related offenses or any other potential violation of D.C. law within our criminal jurisdiction, OAG has determined to exercise its prosecutorial discretion to decline to bring criminal charges against Mr. Gregory, who has no criminal record, or any other NBC employee based on the events associated with the December 23, 2012 broadcast. It would have been nonsensical to go after Gregory. He only got the benefit of the doubt because he was a DC political journalist who was literally interviewing Obama last week. And it was nonsensical to go after Swartz. But he did not get the benefit of the doubt.