Kerr does a good job reminding readers that what happened to Swartz was absolutely standard for federal prosecutors, and the outrage is triggered largely because he has a powerful constituency looking for redress on his suicide. The important takeaway from this, though, isn't about the injustice that happened to Swartz as much as the ongoing injustice of a system of federal prosecution that does this to many, many more defendants who are far less powerful and connected than Swartz.
I think a lot (most?) people understand that. Aaron is the rallying cry to spark action. Ortiz is an initial heading to point that action. And while I hope Ortiz does pay (see https://news.ycombinator.com/item?id=5071218 for hope it might be), I hope even more that it doesn't stop there.
The value in Ortiz "paying" is to show other prosecutors what can happen when they get over zealous. There is only value in that if it is continually monitored and other prosecutors are "punished" when they do the same.
To that end, it would be nice to have a way to monitor that activity, because it is nigh impossible to change what you can't measure, if the problems are systemic enough (as I believe this one is).
If Ortiz or Heymann are fired or resign under pressure, the only signal that really sends to other prosecutors is that mob justice is effective for those with a mob at their backs. And against the idea of being over zealous, you have the mentality cultivated in the legal field that one cannot be "over" zealous in playing one's role within an adversarial system.
If you want to see change, not just for people like Swartz but for all defendants, you need to remove the incentives for prosecutors to rack up the highest number of kills, and you need to make a trial something that isn't going to ruin the defendant if they choose not to plea out.
>If Ortiz or Heymann are fired or resign under pressure, the only signal that really sends to other prosecutors is that mob justice is effective for those with a mob at their backs.
It is this kind of argument that seeks to undermine the call to action mentioned in the (rather brilliant) grandpost. Unfortunately, it is often the case that if any action at all is to take place, it must be drastic. Subtle actions tend to fall apart.
Perhaps Ortiz's career will be ruined by this. Let us say that's unfair. But what if that outcome leads directly to a change in the entire system? What if, because she lost her job, prosecutors no longer bully defendants into taking bad plea deals by throwing the book at them because we made Ortiz into an example? Would that be worth it?
I don't care if Ortiz suffers an unjust end to her career. She'll still be alive. And I'm not suggesting the problem is that the action is too drastic. It's that the action sends the wrong message. The most likely outcome of Ortiz getting fired is that prosecutors are more cautious about bullying the well-connected; they'll judge each defendant on the likelihood of their martyrdom and act accordingly. It won't make defending oneself against federal charges any more cheap or accessible; it won't make a prosecutor approach you in a measured way. And the less powerful defendants are still going to get screwed--which is to say, those who most need federal prosecutors to treat them reasonably and decently. Firing Ortiz (or, more accurately, Heymann) will just make others more cautious when dealing with the rich and the famous.
Prosecutors bully defendants into taking bad plea deals because they're judged on their conviction rate. People act according to their incentives, and federal prosecutors are incentivized to get quick, cheap convictions the way they do it now. You want change? Change the incentives. Crucifying one out of a hundred doesn't work.
I completely agree with the thought process here, and changing the incentives.
Not sure why you seem so against her losing her position though. As much this is the sort of thing prosecutors do on a regular basis, they shouldn't be. Why is she more infallible than you or I. I don't think her losing her job will send a wave of change through the system, a lot more has to take place in order for any of that to come to fruition. As much as I think people are focusing on the wrong issue here, seeking retribution through ending her career. Her callous attitude toward the case and toward punishments in general has not helped. But even if all prosecutors act the same, this is just a case that opened a lot of eyes to it. Is there no grounds or merit in the thought of letting her go. If I fuck up at my job, I could be on the chopping block to. As much as letting her go will do very little in the grand scheme of things. Leaving her there and doing nothing would also send a message to other prosecutors and to the current angry mob of people.
Well, democratic governments are inherently mob driven. So we could think of effectiveness of the referred mob justice in terms of a legit and faster method of geting the government (or it's agencies) to take action than waiting for the next, different, government to get elected.
> The value in Ortiz "paying" is to show other prosecutors what can happen when they get over zealous
what i got from the article is that Ortiz was not overzealous. she was doing what most prosecutors do all the time. why should we single her out? if we wanted to fire all prosecutors that used her tactics, we'd probably have to fire the majority of federal prosecutors.
Without involving Ortiz, what could we do that would get as much press as this has gotten? If the media has no interest, your cause is going nowhere, and the media won't be interested without names and faces to talk about.
Besides, it is completely logical to believe she was overzealous and every other prosecutor is doing it. Just because everybody else is speeding, too, doesn't mean I won't get the ticket. Ortiz happens to be the one who got pulled over.
(FWIW, I'd much prefer we not have to drag her or, really, anyone down. She is a real person with feelings and passions, and is, as you mention, acting within SOP for her position. I just don't see a way to start affecting change across the country without going through her [I'm not convinced the change can happen even doing that, but we need to try.]. I'm open to alternatives that can realistically gain momentum.)
You've managed, in two posts, to state almost precisely my own thoughts on this matter. It is indeed something of a shame to hold Ortiz personally liable for the system in which she learned her craft; and yet it seems that there is no better way to signal a strong, popular desire for that system to change than to end her (and Steve Hymann's) career. Given that their actions lead to the death of Aaron Swartz, personally, I wouldn't feel too bad for them. No-one is calling for disbarment, after all, so they have a cushy private practice to look forward to.