Two years ago, Aaron Swartz was driven to suicide by a federal prosecutor. Now three members of Congress have introduced a bill to take away one of the tools that prosecutor used and limit others.

But while it may have helped Swartz, “Aaron’s Law,” recently introduced by Rep. Zoe Lofgren (D-Calif.), Sen. Ron WydenRonald (Ron) Lee WydenFCC to move forward with considering executive order targeting tech's liability shield Top Democrats call for watchdog to review Trump Medicare drug cards On The Money: Trump says talks on COVID-19 aid are now 'working out' | Pelosi shoots down piecemeal approach | Democrats raise questions about Trump tax audits MORE (D-Ore.) and Sen. Rand PaulRandal (Rand) Howard PaulMichigan Republican isolating after positive coronavirus test GOP Rep. Mike Bost tests positive for COVID-19 Top Democrats introduce resolution calling for mask mandate, testing program in Senate MORE (R-Ky.), wouldn't protect the rest of us from the biggest threat his case highlighted: the use of steep penalties to bully defendants out of their right to a trial.


Stephen Heymann, of the U.S. attorney’s office in Massachusetts, wasn’t trying to kill Aaron Swartz, who at 26 had helped create Reddit, RSS, and Creative Commons: that seems clear. He confronted Swartz with a four-count indictment that carried a theoretical maximum sentence of 35 years. Then he produced a second indictment, splitting basically the same charges into 13 counts with maximum sentences totaling 95 years. He threatened, Swartz’s lawyers later said, to seek a sentence of more than seven years if Swartz went to trial and lost. But if Swartz would plead guilty to at least one felony count, Heymann offered him sentences of just three or four months—or even a chance to ask the court for a sentence with no jail time at all, under a deal where the prosecution would limit itself to requesting six months.

The options he gave Swartz are compelling evidence of Heymann’s intentions: to force a defendant, legally presumed innocent, to give up his right to a trial and accept condemnation as a felon. At the time, one of Swartz's friends said, the programmer and activist had been getting interested in pursuing public office; a felony record could have ended that pursuit before it started. Threatened with severe punishment if he defended his rights, but unwilling to surrender them, Swartz found a way out: death.

Notice I haven’t said what Swartz was accused of doing. We don't need to consider that to see the outrage in what Heymann did. Whether or not Swartz did what the law prohibited, and whether or not the law should have prohibited anything Swartz did, the evidence shows that Heymann set out to intimidate Swartz out of his right to a trial. Even if Swartz had been a murderer (he was in fact accused of bulk-downloading academic papers), he was entitled to a trial. Even the guilty are entitled to their day in court. That’s how we know they are guilty.

Most of the charges in Swartz’s case were under the Computer Fraud and Abuse Act, and it’s this that Aaron’s Law seeks to reform. The bill would abolish as “redundant” one section of the CFAA that was responsible for five of the counts in the second indictment—counts that, as you would expect from a redundant law, corresponded closely to five other counts in that indictment. Other reforms in the bill would have weakened Heymann’s hand as well.

But if we think that Aaron’s Law, or any other CFAA reforms, can prevent the kind of moral crime Heymann committed against Swartz, we’re missing the biggest lesson of his death. When Swartz’s suicide captured the Internet’s attention, law professor Orin Kerr told Volokh Conspiracy readers that Heymann’s methods were not unusual—that they reflected how the government treats many other defendants, defendants who do not get widespread attention because they are not well-connected (and widely admired) geniuses like Aaron Swartz. The government’s acceptance of intimidating people out of going to trial was made clear when former Attorney General Eric HolderEric Himpton HolderAlarm grows over Trump team's efforts to monitor polls The Hill's Campaign Report: Biden on Trump: 'He'll leave' l GOP laywers brush off Trump's election remarks l Obama's endorsements Obama endorses Warnock in crowded Georgia Senate race MORE said he didn’t even judge Heymann based on what charges he brought against Swartz, but based on the plea offers. But if the plea offers were the kind of sentence Swartz deserved, that means Swartz was facing a few months in jail for downloading articles—and six years, or theoretically much more, for asserting his right to a trial.

If we want to protect ourselves from the kind of government bullying that drove Aaron Swartz to suicide, amending the CFAA may help, but it isn’t enough. We need to examine all the tools prosecutors use to get guilty pleas—and how they use those tools.

Cohen is the founder and executive director of the Center for the Individual.