The State Should Not Pardon Aaron Swartz

There is a petition seeking the pardon of Aaron Swartz. It states, “President Obama has the power to issue a posthumous pardon of Mr. Swartz (even though he was never tried or convicted). Doing so will send a strong message about the improportionality with which he was prosecuted.” I understand the sentiment that underlies the petition. But I think it is wrong-headed and misplaced. It grants the state far too much.

It’s not simply a matter, as some have claimed to me on Twitter, that Swartz was never tried nor convicted of a crime; Ford, after all, pardoned Nixon before he was tried and convicted in the Senate could be charged, tried or convicted in a court of law. The real issue is that in the court of public opinion, Swartz is the innocent—no, the hero—and the state is the criminal. It is the state, in other words, and not Swartz’s supporters, that should be seeking a pardon—from Swartz’s family, from his supporters, and from the public at large. Though, I hasten to add, it should never receive one.

Asking the state to pardon Swartz doubly empowers and exonerates the state. It cedes to the state the power to declare who is righteous and who is wrong (and thereby obscures the fact that it is the state that is the wrongful actor in this case). The petitioning language to Obama only adds to this. The statement depicts Obama as somehow the good father who stands above the fray—much like how the Tsar was depicted in the petition of the Russian workers who marched with Father Gapon on the Winter Palace in 1905 and were summarily slaughtered.

Pardoning Swartz also would allow the government, effectively, to pardon itself. As my friend Michael Pollak pointed out to me, “Under our laws, Swartz was still innocent. Therein lies the crime of what the state did to him. This would remove it.” I would merely add that even if Swartz would have been (or had been) found guilty under the law, Michael’s stricture would still hold.

I want the death of Swartz, and the prosecution that helped produce it, to hang around the neck of the state for a very long time. If the state wishes to remove it, let it start by curbing its prosecutorial zeal, of which Swartz was sadly only one victim.