Prosecutorial Overreach?

Posted on Jan 16, 2013 | 4 Comments

When 26-year-old Internet prodigy Aaron Swartz committed suicide over the weekend, it sparked both grief and a lot of questioning.

Swartz, one of the creators of the RSS specification and a “digital activist,” was under indictment by the U.S. Justice Department for allegedly stealing more than 4 million academic articles from JSTOR, an archive of journals and papers, with an intent to distribute them for free. Although JSTOR chose not to press charges, federal prosecutors disagreed and charged Swartz, who struggled with depression, with multiple felonies. He faced the prospect of being released from prison after his 60th birthday.

One set of actors receiving extensive scrutiny at the moment are the attorneys within the Justice Department. Did they go too far in this case?

In a post at the HBR BlogJames Allworth, co-author of the book How Will You Measure Your Life?, sees a systemic problem. “It was hard to think about this sad turn of events without wondering why the government decided to seek up to 35 years of prison time for a 26-year old who JSTOR had decided to drop charges against,” Allworth writes.

By contrast, he notes, executives at a medical device company that caused patient deaths by choosing to bypass clinical trials were charged only with misdemeanors, and the bank HSBC, which helped launder money for drug cartels, escaped prosecution altogether. “It seems you can get away with laundering money for the drug cartels, so long as you’ve been generous with the those responsible for appointing district attorneys,” Allworth concludes, with prosecution being “determined much less by any notion of justice than it is by a broken political system corrupted by the influence of money.”

Peter Drucker wrote occasionally of bias in public policy. When it came to business, however, Drucker felt that big companies often were held to a higher standard than individuals. In The Changing World of the Executive, Drucker lamented that “acts that are not immoral or illegal if done by ordinary folk become immoral or illegal if done by business.” If a person is forced to pay off a mobster, it’s not a crime. “If a business submits to extortion, however, current business ethics considers it to have acted unethically,” Drucker wrote.

Image source: Hans Braxmeier

Image source: Hans Braxmeier

But we imagine that Drucker would also have appreciated the complementary point of view: that business shouldn’t escape accountability for acts that are immoral or illegal if done by ordinary folk. In Drucker’s view, holding both big and small, powerful and weak to one code was a cornerstone of a civilized society.

“A pagan could . . . hold that different rules of behavior apply to Jupiter from those that apply to the ox,” Drucker wrote. “A Jew or a Christian would have to reject such differentiation in ethics—and precisely because all experience shows that it always leads to exempting the ‘Jupiters,’ the great, powerful, and rich, from the rules which ‘the ox,’ the humble and poor, has to abide by.”

What do you think? Does the Aaron Swartz case suggest that the U.S. justice system is harder on individuals than on big business?


  1. Greg Basham
    January 16, 2013

    The fines that business are paying that are actually borne by the shareholders are now just a cost of doing business. Without criminal charges against executives in firms this stuff will just go on and on.

    The reality is that investigations of wrong doing into business crime are extremely complex and there are simply limited resources applied to this stuff. Crimes such as robbery or murder are a lot easier to solve whereas any conspiracy type charges are very hard to convict on and getting information to lay a charge difficult.

  2. Maverick18
    January 19, 2013

    The question refers to the criminal justice system which is definitely tougher on persons than on corporations because only persons can be imprisoned. Further, corporations have unlimited lives, whereas persons have limited lives and therefore time is dearer to persons. Consider this totally true statement: American Airlines is a convicted felon, yet American Airlines can still carry guns. That is not allowed for persons who are convicted felons. Putting all that aside, the Aaron Swartz case doesn’t suggest anything.

  3. Greg Zerovnik
    January 19, 2013

    The case shows us that DOJ attorneys go after people they think they can cow. That does NOT include well-heeled, campaign contribution-giving MNEs or other friends of the administration in power–Dem or Rep. It’s politics as usual.

  4. What Peter Drucker Would Be Reading | The Drucker Exchange | Daily Blog by The Drucker Institute
    February 6, 2013

    [...] Comment of the Week:  Last week, when asked whether the U.S. justice system is tougher on individuals than on big business, reader Greg Basham said [...]


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