40 years in prison plus a one million dollar fine? Might as well kill a few people while he's out on bail, he already paid for it.
Edit: A bit about the United States Sentencing Guidelines, linked from the lwn thread: https://popehat.com/2013/02/05/crime-whale-sushi-sentence-el...
Still though, a little disproportionate.
In reality, for a non-remunerative first-time offense, even of this severity, the guidelines suggest low single-digits.
I would like to see a situation where the max penalty that can be issued by a judge can only exceed a plea offer by 20%.
Once again: 40 years is not in fact a sentence that is available to the judge; the judge would have to discard the sentencing guidelines entirely, and that sentence would fall apart on appeal.
Further, there is simply no relationship between the number "40 years" and the guidelines. It's not like the DOJ is marking up the guideline sentence by X0%. They're instead using a ridiculous process to add the sentences for every count of a crime up, which is simply not how federal sentencing works.
Swartz had the advice of some of the best attorneys in the field during his ordeal. Nobody doubts the stress of a federal prosecution contributed to his death. But nobody familiar with the case believes --- or believes that Swartz believed --- that he was facing a double-digit-years sentence. His own attorney, who advised him to take the case to trial, believed that if convicted on all counts, he might not even get a custodial sentence --- that his worst case would be a felony conviction with a probation sentence.
You can read the sentencing guidelines (they're public) and see why. First offense. Non-remunerative crime. Highly debatable damage. Reluctant, ambivalent victims.
Are there even 100 people in prison for "cybercrime"?
Does "cybercrime", which includes credit card and identity theft, occur only rarely? Is that why almost nobody is in prison for it? No. The reason nobody is in prison for "cybercrime" is that despite what us message board nerds think, we are not in fact part of a persecuted class.
At this point people are being sentenced to decades for crimes they previously were sentenced to just years for.
The entire situation is disgusting.
So the short answer is "prosecutorial discretion".
The longer answer might be something like this:
During the crime wave from the late 70s through the early 90s, the American public demanded increasingly aggressive prosecution of crime. Prosecutors offices staffed up in response to it. People were elected on promises of increasing funding both to police and to prosecutors. Prosecutors themselves were incentivized to file more cases, again due to the public mood.
The crime wave passed, but once set in motion, the systemic increase in prosecutions didn't stop: in large organizations, headcount, once obtained, is only released dearly. Managed business objectives (like expectations on percentage of offenders for whom prosecutors will charge with felonies), once established, are only with great effort ever changed.
And so that's where we're at now: a prosecutorial system calibrated to the crime levels and hysterical public mood of the late 1980s.
They're obviously angling toward a plea, though.
(I know you know this and that an upward departure from the Guidelines is very unlikely for this particular case--just stating for the record.)
"The government is recommending a guidelines sentence, meaning between zero and six months in jail... It's not sufficient to comply with the purposes of sentencing. It doesn't reflect the seriousness of the crime and the conduct surrounding it. It doesn't provide just punishment for the offense to give simply a guidelines sentence."
[1]: http://www.chicagotribune.com/news/nationworld/ct-pdf-transc...
It is as least as likely that I am wrong than that the reporting is wrong, but, there you go.