United States Attorney General Eric Holder was grilled about the government's conduct in the Aaron Swartz prosecution at a Senate Judiciary Committee hearing on Wednesday. Sen. John Cornyn (R-TX) wrote Holder a letter in January asking Holder to look into the matter, and at the hearing he pressed Holder on whether it was appropriate to threaten a defendant with decades in prison for downloading academic articles.

Holder insisted the media had misrepresented the government's position. "A plea offer was made to him of three months before the indictment," Holder said. The attorney general said the government never intended for Swartz to serve more than six months in jail.

"Does it strike you as odd," Cornyn asked, "that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a three or four month prison sentence?"

"I think that's a good use of prosecutorial discretion to look at the conduct, regardless of what the statutory maximums were, and to fashion a sentence that was consistent with what the nature of the conduct was," Holder responded. "I think what those prosecutors did was consistent with that conduct."

Cornyn was not persuaded. "It strikes me as disproportionate," he said. In Cornyn's view, the government's power was "being used inappropriately to try to bully someone into pleading guilty to something that strikes me as rather minor."

What Holder avoided saying explicitly was that a three to four month sentence was available only if Swartz waived his right to a trial and pled guilty. If Swartz had insisted on exercising his right to a jury trial, the government might have sought a dramatically longer sentence.

On the other hand, Holder is correct that the government's treatment of Swartz was not unusual. The government routinely uses the threat of a long prison sentence to pressure defendants to waive their right to a trial. If Cornyn wants to avoid a repeat of the circumstances that impacted Swartz leading up to his death, he will need to champion a sweeping reform of the criminal justice system.