We did not all come over on the same ship, but we are all in the same boat.
- Bernard Baruch
The dictionary defines the word "theft" as an unlawful taking, the felonious taking of personal property with the intent to deprive the rightful owner of it. We learn from an early age that stealing is wrong. Society, therefore, punishes theft. Knowledge, on the other hand, should not be bound up in any one person's possession; knowledge is power and should be accessible to all who seek it. Indeed, access to information is the basis of liberty and freedom itself. And, so when a theft involves not personal gain, but greater good in more accessible information or greater liberty does society have any interest in punishing the theft itself? Must we weigh the act of stealing with the purpose of the theft and should we value the intention at least as much as the act before determining whether every theft is a crime?
In the recent matter of Aaron Swartz, he was accused of appropriating scholarly documents in order to make them accessible to anyone who desired the information. The theft was an act of civil disobedience as Mr. Swartz protested compensating publishers (not authors) of academic journal articles and he therefore sought to allow access to the information to all at no cost. He never intended and never received personal gain. He had no intention of depriving, and indeed, did not deprive the rightful owner of property as the property was information which cannot be owned. Regardless of where people stand on the issue of hacking and accessibility and his methods of protest, the potential 35 year term (or, let's be frank, even the "generous" 6 month term and felony conviction barring him forever from voting and participating fully in his own government) are far too high a sentence. Certainly, the penalty should not have been death. That is too high a price not just for him and his family, but for society in the loss of a brilliant, committed, courageous activist.
In 1862, another young, courageous man committed an act of civil disobedience. Robert Smalls was born a slave in 1839 in Beaufort, SC. His wife was born a slave as well and in the "peculiar institution" that was slavery, although not free, he and his wife and children lived together in Charleston working various jobs, keeping a minimal pay and sending the remainder to their (separate) "owners." In daily life, Mrs. Smalls was a maid at a hotel and Mr. Smalls worked along the quays skillfully learning to rig and sail. With great acumen, he navigated Charleston Harbor in every conceivable manner.
He was 24 in 1862 with a war raging around him and, like several skilled enslaved Americans, he was assigned to perform duties for the Confederate cause. He and several others worked on a munitions ship called The Planter until one day when they hijacked it, picked up their families at a rendezvous point, and sailed skillfully through Charleston Harbor, past Fort Sumter and, raising a white sheet, into the Union Navy to whom they "surrendered." Indeed, Robert Smalls and his crew provided not only a ship with ammunition, but also a code book revealing the placement of mines and torpedoes and, most importantly, their support of the Union.
Mr. Smalls met personally with President Lincoln who rewarded him for stealing The Planter and providing his profound knowledge of the Southern waterways to the Union Navy. It was Mr. Smalls who finally persuaded the administration to permit black men to fight for the Union. Before the impressive Massachusetts 54th Infantry was mustered into duty in March, 1863, the 1st South Carolina Infantry, a unit composed of freed slaves, had seen action in Georgia and Florida. Indeed, without these knowledgeable and fiercely brave warriors, navigation of Southern rivers would have been impossible. As commanding officer Colonel Higginson astutely noted, these men had not left their homes and families to fight, they were fighting for their homes and families. Surely, they fought for freedom in a more profound sense than any one of their white brothers could imagine.
Robert Smalls would go on to be a war hero assisting both the Union Navy and Army. A public figure of great stature, he was a delegate to the 1864 Republican Convention. Foreshadowing his descendants, he led a boycott of the segregated streetcars in Philadelphia which resulted in the desegregation of public transit in that city by 1867. He returned to his beloved South Carolina as a commissioned Brigadier General in the state militia, obtained an education, opened businesses and started a school. He would go on to serve in the state legislature and in Congress during the brief and undervalued period of Reconstruction. Although it would not come to pass until 1948, Rep. Smalls sought to desegregate the military and he argued for the continuation of federal troops to protect freedmen from the rise of the Ku Klux Klan and affiliated groups.
By any estimate, Robert Smalls is an American hero - a brave warrior, an ardent champion of civil rights, an effective representative for the people of South Carolina and an inspiration for thousands, if not millions, of Americans of all races. But, he was a thief. He stole The Planter and some folks were just not about to let him forget about that. So, as a duly elected representative of the Palmetto State, he was falsely accused of accepting a bribe, faced a trial and was convicted. He was sentenced to three years in prison.
Robert Smalls would only serve three days - he was released pending appeal - which he lost. But, the governor of South Carolina granted him a pardon and ultimately - through several more fights - he did return to Congress. In the interim, President Hayes had withdrawn the troops from the South, voter suppression had begun in earnest, the state Republican party was rife with scandal and the Democrats were taking hold in what would lead to gerrymandering and ultimately the devastation of the Jim Crow South. However, Mr. Smalls would be appointed by two presidents as the collector at the port of Beaufort, SC and his life was one of great contribution to this nation until his death in 1915.
Had he not stolen that munitions ship when he was 24 years old, America never would have had the courageous leader that was Robert Smalls. Had he been prosecuted for that theft rather than lauded as a hero, America would never have had the courageous leader that was Robert Smalls. Had the misguided abuse of discretion now practiced by prosecutors prevailed, America never would have had the courageous leader that was Robert Smalls.
When the United States government indicted Aaron Swartz, he, too, was 24 years old. He, too, had great skills and intelligence and gifts and courage and honor to share with his country and the world. He sought to liberate information into the public domain. No one would get hurt, no one would die, honestly few would even notice since the accessible academic articles live lonely lives of neglect. Instead of viewing him as a hero for knowledge and freedom of speech and celebrating the purpose of his intent, his own government - the one that could have benefited the most from his brilliance and his energy and his knowledge and his curiosity and his courage dogged him with a prosecution and a prison term and the loss of his vote - his voice. It may be unfair to say that the United States Attorney's office killed him, but it is irrational to say that it had nothing to do with his death.
In 1862, when Robert Smalls stole a ship and a code book and guided them through the dark of night into Union hands, we, the people, celebrated him as a hero. We, the people could see that although he was undeniably a thief, his intent was to liberate and not to harm. We, the people in the midst of an uncertain and gruesome war welcomed his expertise and his bravery. His courage began to turn the tide of battle for without African American troops - troops he requested be commissioned - the war would have lasted longer with countless more deaths. We had a direction and purpose by then; to end the war, to abolish slavery, to unite these bedraggled states into one nation, indivisible with liberty and justice for all. Even in the fog of war we had our compass set right.
150 years later, in relative peace and ease of life, we are adrift. The reason the United States Attorney for the District of Massachusetts is so defensive and sees nothing wrong in the prosecution of Aaron Swartz for, essentially, copyright infringement where the holders of the copyright did not want to press charges, is that we have no moral compass left in criminal cases. The instructions courts provide to juries in criminal matters are obscene: juries are not told of their time honored right to nullify the actions of their legislatures. With the vanishing of the mens rea requirement, living has become a crime so that no matter who is indicted, the likelihood is that s/he will not walk out of the court without a restraint on liberty. This blog has noted that by pleading out over 95% of criminal cases, juries have become a rare commodity. Without juries, we the people are silenced.
We will never know what Aaron Swartz would have been able to teach us because he, tragically, took his own life in the face of pressure from the unwavering hammer of the Department of Justice. If Robert Smalls could, by stealing a ship, lend his knowledge and his service to this country for another 50 years in positions of authority and power, then the least we could have done is give Aaron Swartz the opportunity to share his quest for freedom of information for another day.
But it is not just the tragedy of Aaron Swartz, it is all of those who suffer without dying due to our ruthless and ineffective criminal justice system. There are many holding Mr. Swartz up as the reason we must revisit federal prosecutorial discretion, sentencing guidelines and the authority of any unelected official to wield such relentless power - and that is fair and just; a conversation long overdue. But, it is not just the federal government and the extreme sentencing guidelines and the unelected officials - it is us, all of us who are to blame for the spiral from 22 federal crimes at the inception of the country to thousands and thousands today. We are to blame for the complacency of both parties and most Americans and the elected District Attorneys in incarcerating over one million of our citizens at a cost that is bankrupting us at a quicker, and more consistent, rate than the misbegotten wars we are fighting.
The reason the prosecutors do not think it is morally reprehensible to threaten a civil activist with the possibility of 35 years in prison is because while America was becoming an army of AR-15-toting soldiers intent on battling the evils of birth control, the rights that men like Robert Smalls spent their lives fighting for have faded into history. We must reclaim our ship of freedom and democracy and guide her with the conviction of decency and morality and fairness as we re-set our course toward a more perfect union.
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