(Aaron Swartz beat prosecutors by increasing political support for open access. – Slate Magazine) …it is both ironic and apt that Swartz’s defenders argue that the government should be prosecuting greedy Wall Street fat cats responsible for the financial crisis rather than ideologically overzealous hackers like Swartz. Ironic because the same populist outrage against dimly understood behavior motivates the call for prosecutions of hackers and the call for prosecution of bankers. Apt because the argument shows how much prosecutorial discretion both influences social policy and is in turn subject to political pressure.
As Orin Kerr has pointed out, this is a generic complaint about our criminal justice system. Lawmakers pass extremely broad and vaguely worded statutes that criminalize vast swaths of behavior then leave it to prosecutors to decide who to target and who to spare. The major constraint on prosecutors is limited resources, so they threaten defendants with draconian punishments to coerce them into plea bargains. Judges and juries remain backstops against the worst injustices, but because trials themselves are ruinously expensive and can end in long prison terms, defendants often forgo the protections they offer.
vague laws against “disorderly conduct” and “loitering” and “breach of the public peace,” which enable police to arrest whoever they want.(MORE)