Aaron Swartz, Carmen Ortiz and the meaning of justice

Aaron Swartz in January 2012. Photo (cc) by Daniel J. Sieradski. For details, click on image.
Aaron Swartz in January 2012

An earlier version of this commentary was published on Sunday at The Huffington Post.

The suicide of Internet activist Aaron Swartz has prompted a wave of revulsion directed at U.S. Attorney Carmen Ortiz, who was seeking to put him in prison for 35 years on charges that he illegally downloaded millions of academic articles.

Swartz, 26, who helped develop the RSS standard and was a co-founder of Reddit, was “driven to the edge by what a decent society would only call bullying,” wrote his friend and lawyer Lawrence Lessig. “I get wrong,” Lessig added. “But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”

By Monday morning, more than 11,000 people had signed an online petition asking President Obama to remove Ortiz. Swartz’s family released a statement that said in part: “Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach.”

Ortiz’s vindictiveness toward Swartz may have seemed shocking given that even the victim of Swartz’s alleged offense — the academic publisher JSTOR — did not wish to press charges. But it was no surprise to those of us who have been observing Ortiz’s official conduct as the top federal prosecutor in Boston.

Last July I singled out Ortiz as the lead villain in the 2012 Muzzle Awards, an annual feature I’ve been writing for the Phoenix newspapers of Boston, Providence and Portland since 1998. The reason: her prosecution of Tarek Mehanna, a Boston-area pharmacist who had acted as a propagandist for Al Qaeda.

Mehanna was sentenced to prison for 17 years — not because of what he did, but because of what he said, wrote and translated. Though Mehanna had once unsuccessfully sought training at a jihadi terrorist camp in Yemen, the government’s case was based almost entirely on activities that were, or should have been, protected by the First Amendment.

Make no mistake: Mehanna’s propaganda was “brutal, disgusting and unambiguously supportive of Islamic insurgencies in Iraq, Afghanistan and Somalia,” Yale political scientist Andrew March wrote in The New York Times. But as March, the ACLU and others pointed out in defense of Mehanna, the more loathsome the speech, the more it deserves protection under the Constitution.

In addition to the prosecution of Tarek Mehanna and the persecution of Aaron Swartz, there is the matter of Sal DiMasi, a former speaker of the Massachusetts House who is now serving time in federal prison on political corruption charges brought by Ortiz.

Last June DiMasi revealed he had advanced tongue cancer — and he accused federal prison authorities of ignoring his pleas for medical care while he was shuttled back and forth to Boston so that he could be questioned about a patronage scandal Ortiz’s office was investigating. It would be a stretch to connect Ortiz directly with DiMasi’s health woes. She is, nevertheless, a key player in a system that could transform DiMasi’s prison sentence into a death sentence.

Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz’s death, she should not be regarded as an anomaly. As the noted civil-liberties lawyer Harvey Silverglate pointed out in his 2009 book, “Three Felonies a Day: How the Feds Target the Innocent,” federal prosecutors have been given vague, broad powers that have led to outrages against justice across the country.

“Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career,” wrote Silverglate, a friend and occasional collaborator. “Whole families have been devastated, as have myriad relationships and entire companies.”

Ortiz may now find that her willingness to use those vast powers against Swartz could have a harmful effect on her future.

As a Latina and as a tough law-and-order Democrat, she has been seen as a hot political property in Massachusetts. In 2011 The Boston Globe Magazine named her its “Bostonian of the Year.” She recently told the Boston Herald she was not interested in running for either the U.S. Senate or governor. But that doesn’t mean she couldn’t be persuaded. Now, though, she may be regarded as damaged goods.

Those who are mourning the death of Aaron Swartz should keep in mind that he had long struggled with depression. Blaming his suicide on Carmen Ortiz is unfair.

Nevertheless, the case she was pursuing against Swartz was wildly disproportionate, and illustrated much that is wrong with our system of justice. Nothing good can come from his death. But at the very least it should prompt consideration of why such brutality has become a routine part of the American system of justice.

Update: MIT, where Swartz allegedly downloaded the JSTOR articles, has announced an internal investigation, reports Evan Allen of The Boston Globe. Lauren Landry of BostInno has statements from MIT president Rafael Reif and from JSTOR.

Photo (cc) by Daniel J. Sieradski via Wikimedia Commons and published here under a Creative Commons license. Some rights reserved.

Mass. teachers join the national surveillance state

Photo via Wikimedia Commons (click here for info)

Teachers in Massachusetts must now submit to being fingerprinted. And another part of our liberties just died.

This happened so quickly and quietly that I had no idea it was in the works until I read a small Associated Press item in the Boston Globe this morning. Googling revealed a detailed story published by Patch. The new law, signed on Thursday by Gov. Deval Patrick, pertains to everyone who works at schools and child-care centers. As this press release from the governor’s office makes clear, the law applies to private-school teachers as well.

Please read this sentence twice: The information would be forwarded to the State Police and from there make its way to the FBI.

It’s always easy to defend such measures as being in the best interests of kids. And if you’ve got nothing to hide, why should you care?

Let me offer a hypothetical. A teacher’s fingerprints could turn up in an investigation that has nothing to do with kids. That teacher will then be hauled in the police for reasons that have nothing to do with why the fingerprints were submitted in the first place — putting teachers at greater legal jeopardy than those of us whose fingerprints are not on file.

In effect, teachers are becoming part of the national surveillance state as the price of being employed. Taken in isolation, maybe it’s not a big deal. Several other states, including New York, already fingerprint teachers. But it chips away at our freedom, and it’s too bad Patrick decided to pander rather than use his veto pen.

What now?

Like many of us, I’ve been thinking a lot about how we could change the laws in this country so that we might actually be able to prevent incidents like the Connecticut school massacre.

I’ve long been an unenthusiastic supporter of stricter gun control. Supporter because I think the wild proliferation of guns is doing terrible things to our country. (Personally, I’d ban everything but hunting rifles.) Unenthusiastic because I have real doubts that anything other than a near-total prohibition would do much good — and that’s not going to happen.

At the moment, I’m thinking that we should focus on doing much, much more to screen people for mental illness before we allow them to buy guns. I don’t know if it would have mattered in Connecticut, especially if it turns out that the guns were purchased by the shooter’s mother. But it might very well have prevented the Gabrielle Giffords and Virginia Tech shootings.

And since we know that this is going to get bogged down in politics, it also seems to me that keeping paranoid schizophrenics away from guns might be the one issue on which Republicans could be persuaded to stand up to the NRA.

Justice and the immigration system

The Marty Baron era is ending with a bang. As you no doubt already know, the Boston Globe this week published an exhaustive three-part series on the justice system and illegal immigration.

Called “Justice in the Shadows,” the series — reported by Maria Sacchetti and Milton Valencia — looks at illegal immigrants who have been released and committed serious crimes (including murder) because their home countries don’t want them back; at others who themselves have been treated unfairly, such a Lynn woman who died in custody; and, today, at the separate court system that has been set up inside prison walls.

The series is accompanied by videos and links to relevant legal documents. And there could be more to come: the Globe has sued the U.S. Department of Homeland Security to obtain “the names of thousands of criminal immigrants it released in the United States over the past four years, sometimes with tragic results.”

It’s also yet another reminder that important public-service journalism like this simply can’t be done without large, well-funded news organizations.

Republicans find another group to alienate: the disabled

Bob Dole in 2008. Photo (cc) by Kevin Rofidal and republished here under a Creative Commons license. Some rights reserved.
Bob Dole in 2008. Photo (cc) by Kevin Rofidal and republished under a Creative Commons license. Some rights reserved.

It’s hard to imagine a more disgraceful moment for the modern Republican Party.

The Senate was voting on whether to accept a United Nations treaty on the rights of the disabled — a treaty that was reportedly modeled after the Americans with Disabilities Act, one of the great accomplishments of President George H.W. Bush, a Republican.

Former Republican senator Bob Dole, 89, sitting in a wheelchair, was on hand to lend his support. Dole, of course, was disabled long before old age rendered him a wheelchair-user — a consequence of his heroism in World War II.

And Republican senators voted against the treaty, 38-8. Not a single Democrat voted against it. Sixty-one senators were in favor — five short of the two-thirds needed.

We in Massachusetts, at least, can hold our heads high: Sen. Scott Brown was among the hardy band of Republicans who voted in favor. And Democratic Sen. John Kerry delivered what the New York Times called “his most impassioned speech all year” in urging his fellow senators to approve the treaty.

After losing the election in part because they alienated African-Americans, Latinos, gay men and lesbians, you would think that Republicans wouldn’t be looking for another group to infuriate.

You would be wrong.

The MacDonald case, journalism and the truth

http://www.bookforum.com/uploads/publication.000/id19920/cover00.jpgProsecutors, a judge, and a jury put Jeffrey MacDonald behind bars more than three decades ago for the murder of his pregnant wife and two young daughters. But according to Errol Morris, he’s been kept there by the power of narrative. “You can escape from prison, but how do you escape from a convincing story?” asks Morris in his new book, “A Wilderness of Error” …

Read the rest of my review in the new issue of Bookforum.

You can also read my article on an earlier book about the MacDonald case, Jerry Allen Potter and Fred Bost’s “Fatal Justice,” which appeared in the Boston Phoenix on April 7, 1995.

Why I’m voting against physician-assisted suicide

Dorothy Wertz

I have a simple reason for voting against Question 2, the “Death with Dignity” referendum, which would, if passed, legalize physician-assisted suicide in Massachusetts. People in the disability-rights movement who I respect are against it. And I agree with their reasoning.

Unlike other people you may have heard from on both sides of the question, I do not have any heartbreaking or poignant stories to share. Rather, I have a perspective that I gained a decade ago when I was researching my first book, “Little People.”

Among other things, I learned disability-rights activists worry that advances in medical technology are making it increasingly easy to diagnose genetic conditions in utero — thereby leading to the likelihood that parents will select abortion, even in cases (such as dwarfism) where the disability is not particularly severe or incompatible with what society considers to be a “normal” life.

Indeed, my wife and I encountered that attitude ourselves when our then-infant daughter saw a geneticist who wanted us to know there was nothing that could have been done. What she meant was that Becky’s dwarfism couldn’t have been diagnosed in utero (it could today), and thus we shouldn’t feel bad that we weren’t given a chance to choose abortion.

We were shocked, but I guess we shouldn’t have been. And in researching “Little People,” I learned from the geneticist Dorothy Wertz (pdf) that many people would choose abortion if they were told their child would be a dwarf — and, significantly, that medical professionals were more pro-abortion than lay people.

That’s the attitude disability-rights activists are worried about with regard to Question 2: a negative approach toward people who are sick or disabled, and who might be pressured into choosing suicide by family, insurance companies and doctors. And that’s why I’m voting no.

I urge you to read a truly moving essay in this week’s Phoenix by S.I. Rosenbaum, and to listen to an interview that was broadcast in September by WBUR Radio (90.9 FM) with disability-rights activist John Kelly, who opposes Question 2, and Dr. Marcia Angell, who’s for it. You can also learn more about the reasons for opposing physician-assisted suicide at Second Thoughts. The argument in favor is available at Death with Dignity.

What follows is an excerpt from “Little People” dealing with research about attitudes about disability and abortion.

***

I interviewed Dorothy Wertz, a psychiatrist affiliated with the Eunice Kennedy Shriver Center in Waltham, on a cold February day in the sunroom of her home on Massachusetts’s South Coast. Her husband was dying of lung cancer. She would die a year later. Nevertheless, she cut a flamboyant figure, tall and with a strong physical presence despite her advanced years, wearing a pillbox hat, turquoise earrings, and an enormous silver-and-turquoise necklace that looked heavy enough to weigh her down. I’d met her years earlier when I took part in a study she’d overseen regarding the attitudes that parents of disabled kids hold toward the medical establishment. I liked her forthright, down-to-earth manner. What I didn’t like so much was what she had learned about attitudes toward disability — including dwarfism.

In the late 1990s Wertz conducted a study of about two thousand people — 1,084 genetics professionals, 499 primary-care physicians, and 476 patients. One of the disabilities that participants were questioned about was achondroplasia, the most common form of dwarfism. The results were stunning. Among the genetics professionals, 57 percent would choose abortion if it were detected in utero; among physicians, 29 percent; and among patients, 24 percent.

To bracket this, let me pull out two other findings. The first pertains to Down syndrome, certainly a serious genetic condition, but one not incompatible with a good quality of life. Here the proportion of genetics professionals who would abort was 80 percent; physicians, 62 percent; and patients, 36 percent. The second involves a genetic predisposition to severe obesity, which is not a disability at all, or even destiny. After all, parents can teach their kids to eat properly and lead healthy, active lives. Yet even in this instance, 29 percent of genetics professionals would choose to abort, as well as 13 percent of physicians and 8 percent of patients.

What’s frightening about all of this is that we are closer to screening for such conditions on a routine basis than many people realize. Some day — perhaps in a decade, perhaps two or three — it will be possible to lay out a person’s entire DNA on a computer chip, all thirty thousand or so genes, and compare that person’s DNA to the ideal. Such chips could be generated for early-term fetuses just as easily as for those already born. Once the use of such technology becomes routine, it would cost “mere pennies per test,” as Wertz has written, to screen fetuses for thousands of genetic conditions. Including, of course, achondroplasia and several other types of dwarfism.

Wertz’s study points to another potential concern. Across the board, her findings show that ordinary people are far less likely to choose abortion than are medical professionals. (To be sure, one in four ordinary couples would choose abortion if they learned their child would have achondroplasia, which is high by any measure.) Yet it is medical professionals who will counsel couples when they learn that the child they are expecting would have a disability. What kind of pressure will these professionals use to obtain what is, to some of them, the preferable result? If we had learned the fetus Barbara was carrying in the early spring of 1992 would have severe respiratory problems and could have a whole host of other complications as well, what would we have chosen to do? There was no Becky at that point, only a possibility. And the possibility would have sounded more frightening than hopeful.

Little People of America has long argued that prospective parents who learn that their child will have a type of dwarfism should be provided with information about the good lives that most dwarfs lead, and even be given a chance to meet dwarf children and adults. It’s a great idea. But will it happen? And at a time of skyrocketing medical costs, are there too many social pressures against that happening? There’s no doubt that, in many instances, abortion would be in the best interest of insurance companies. Think of all the money they could save if they refused to cover a fetus that has been diagnosed with a potentially expensive genetic condition. Some parents, of course, would not choose abortion because of their religious or moral beliefs. But what about the vast majority of us — the people who regularly tell pollsters that they’re pro-choice, although they may be deeply uncomfortable with abortion personally? Would they be able to resist — would they, should they, even attempt to resist — when faced with the possibility of financial ruin?

And abortion is just one part of this, a crude, archaic approach that will likely fade away with improvements in medical technology — improvements that will raise few of the moral qualms that so divide the culture today. For instance, when you think about it, sex is a really messy, random way of reproducing. Sure, it’s fun. But look at all the things that can and do go wrong. In his book Redesigning Humans, Gregory Stock argues that in vitro fertilization will someday be seen as the only proper way to have children. “With a little marketing by IVF clinics,” he writes, “traditional reproduction may begin to seem antiquated, if not downright irresponsible. One day, people may view sex as essentially recreational, and conception as something best done in the laboratory.”

Even average-size couples who wouldn’t abort a fetus with achondroplasia would, in all likelihood, choose against implanting an embryo with the mutation. You’ve got five embryos in that Petri dish over there, and you can only implant one. This one has the genetic mutation for Down syndrome; that one has the mutation for achondroplasia; the other three are mutation-free. All right, which one do you think should be implanted?

And thus we will take another step down the road toward the “new eugenics” — a road that, in Stock’s utopian vision, will include artificial chromosomes to include spiffy new designer genes that will protect our descendants from disease, help them to live longer, and make them smarter, better, happier, and just generally imbued with oodles of wonderfulness.

Ultimately Stock posits a world in which we’re going to eliminate achondroplasia and hundreds, if not thousands, of other genetic conditions, predispositions, and tendencies. And we’re going to do it either by eliminating any individual whose genes we don’t like — or we’re going to change the genes.

A horrifying and important piece of journalism

Jenifer McKim discusses her story. Click on image to view video.

The most horrifying and important piece of journalism I’ve seen in quite a while is Jenifer McKim’s front-page story in Sunday’s Boston Globe on an international child-pornography ring — a story that took McKim from Milford to the Netherlands. I have no stomach for describing what McKim found, but you should read it if you haven’t already.

The point is so obvious that it scarcely needs to be made, but journalism like this isn’t possible without resources. In the video, McKim says she worked on the story for a year. The Globe has money (if not as much as it used to), lawyers and institutional muscle. Without those assets, it’s hard to imagine this story ever would have been fully told.

Hockey, race and the ghosts of Boston’s past

Joel Ward in 2011

No rational person thinks the racist tweets that followed the Bruins’ loss at the hands of Joel Ward on Wednesday represented any more than a tiny, ignorant minority of hockey fans (see this, this and this).

But there’s still something uncomfortable about hockey and race, especially in a city whose racial history is as troubled as ours. (And no, we don’t know how many of those offensive tweets came from Boston.)

The fact is that there has always been a certain subset — subspecies? — of hockey fan who likes the sport in part because nearly all the players are white. I grew up here, and I heard plenty to that effect when I was a teenager, and even in my 20s.

It’s no accident that the Bruins of Bobby Orr (two championships) were far more popular than the Celtics of Bill Russell (11). Or that the Celtics finally became the toast of the town after the face of the franchise turned white, first with Dave Cowens and later with Larry Bird.

Of course, Boston is not the same city today that it was in the 1970s and ’80s. The Celtics of recent years, led by three star African-American players and a black coach, have been as loved as any team in Boston. Even the Red Sox have put their ugly past behind them.

But there’s a context for hockey that doesn’t exist in other, more integrated sports. Among other things, Boston Herald writer Ron Borges couldn’t have made his non-racist but stupid observation about Tim Thomas with any other sport because getting beat by a black player would have been entirely unremarkable.

And the mouth-breathing racist fans who tweeted the “N”-word would have long since come to terms with minority athletes (or stopped watching) if we were talking about any sport other than hockey.

It’s not the NHL’s fault that there are so few black hockey players — it’s a function of geography and culture. Indeed, Major League Baseball itself has very few African-American players today, a demise that has been masked in part by the rise of Latino players of color.

Nor does this have anything to do with the vast majority of hockey fans. I don’t like hockey, but I know plenty of people who do. And they are good, decent people who follow the Celtics, the Patriots and the Red Sox just as avidly as they do the Bruins.

But race is an issue in hockey in ways that it just isn’t in other sports. And when you combine that volatility with Boston’s reputation, what happened this week was perhaps inevitable.

Photo (cc) by clydeorama and republished here under a Creative Commons license. Some rights reserved.