> he was facing 13 felony charges and up to 50 years in prison[0]
Pretty hard slap, that.
[0]https://www.rollingstone.com/politics/politics-news/why-did-...
Pretty hard slap, that.
[0]https://www.rollingstone.com/politics/politics-news/why-did-...
Look at this from the prosecutors point of view. They have hard evidence of a crime. They have evidence of consciousness of guilt from the perpetrator. It’s a slam dunk at trial so why should it get to that point? It’s a waste of everyone’s time and money. That’s why the plea deal was so generous compared to the downside of taking it to court. You want to entice them to take a slap on the wrist plea deal so everyone can avoid the cost of forestalling the eventuality of the jury’s verdict.
It’s true that prosecutors can be overzealous in their prosecutions, but 6 months does not sound like the disproportionate punishment many make it out to be.
So yes. Not just the plea deal and not just this case. In any situation, if the only evidence of something is the word of the state prosecutor, that only means so much.
The prosecutor made the offer of a 6-month plea deal to Swartz's lawyer. Who presumably discussed it with Swartz, who seems to have decided not to accept it. Possibly, if you accept the analysis above, on the advice of his lawyer.
My point was how do we know this is an “analysis”. Based off Rolling Stones, this is just the prosecutors words.
How about semi-straight from the horse's mouth? Was his defense attorney working with prosecutors to minimize the threats? Is the Boston Globe in on it? (Conspiracy theories are so much fun! Ever read Foucault's Pendulum?)
Boston Globe link wasn’t here before. Now it is. It changes things. Seems straight forward to me.
From the article, it seems that he was concerned about how being a convicted felon would hurt his career prospects. It would reduce his likelihood of being able to save the world. Not that he would have, anyway, but I think that's part of the thought process.
Speaking for me personally, six months in federal prison would feel like an almost life-ending scenario. I'd lose my job (obviously) and would have trouble finding another in the field for which I'm educated and trained. My fiancee would not have sufficient income to pay our mortgage so we'd lose our house, and I'm not sure what we'd be able to do for the many pets we love dearly. My situation's much different from Swartz's but I can empathize that a six month sentence could have such dramatic consequences that it wouldn't feel like a slap on the wrist.
Isn't incarcerating a person who's not a danger to others and who's crime had no harmful outcomes a waste of everyone's time and money?
> 6 months does not sound like the disproportionate punishment many make it out to be
I encourage you to learn about the conditions in prisons. Imprisoned persons are frequently subject to physical and sexual violence at the hands of guards and other incarcerated people. These are inhumane conditions to subject anyone to, mass murderer and copyright-infringer alike.
Yes, but I think the solution is to make fewer things criminal through the democratic process first. Enforcement of laws is important.
It’s one thing to put people in jail who don’t belong there. But according to this article it kinda seems like Swartz did deserve some jail time.
He knowingly broke the law and showed no remorse. Instead his view was that the law should not apply to him because he did not agree with it. That’s a dangerous mindset to have for an individual with money and power.
It’s important to show remorse and contrition in these circumstances, otherwise we can just assume the behavior will continue. And Swartz had a history of this kind of behavior starting with PACER, so really it should have been expected that failing to prosecute in this instance would have been taken by Swartz as a signal to behave like this with impunity.
> I encourage you to learn about the conditions in prisons.
I 100% agree with you, and know all about this topic, but that’s really a different conversation.
Agreed, unfortunately it seems that we selectively enforce laws based on political pressure. Look at the numerous high profile cases targeting white collar criminals, for example with Purdue and the Sackler family.
They got away with zero jail time and a slap on the wrist (financially), all because they were able to hire the right political actors who could influence the outcome of legal procedures.
I'm sure if Swartz was similarly connected (for example a family who was a Senator), this whole thing would have gone away quietly.
Alas, the laws that apply to the commoners do not apply to the elite.
Don’t give up hope yet!
https://www.google.com/amp/s/amp.theguardian.com/us-news/202...
> I'm sure if Swartz was similarly connected (for example a family who was a Senator), this whole thing would have gone away quietly.
I think Swartz made himself an easy political target without realizing it. From his perspective, he was just a guy in a room trying to “save the world.”
From the outside a different picture can be painted. He positioned himself as an activist, and amassed a great deal of resources and even an active following. He was well connected in that he was on a first name basis with billionaires, and probably even had the personal numbers of a few in his phone.
So I think all this made Swartz a target without him really intending to be one. Or at least he didn’t think that in the process of “saving the world”, that the world would fight back. That seems to be one of the central points of TFA at least.
“Bob’s Story: “I was in the minimum security camp at Fairton for about nine months. It wasn’t nearly as bad as I expected prison to be. The place was clean, the food wasn’t bad, and I didn’t feel any tension between the guys. If I wanted to avoid someone, I could stay to myself. “There were fewer than 100 guys serving sentences in the federal prison camp and I didn’t feel much in the way of harassment from anyone, staff or inmates. With the help of an orderly, I coordinated a prison job for myself in the library. It was just a small room with lots of books and I passed my days catching up on reading. I hadn’t read at all since I was in college because work kept me too busy. During the time I was at the camp I read about 30 great books and I lost 25 pounds. I’m back down to the same weight I was when I was in school and I feel better than ever. My wife loves the new look. She says the prison sentence probably gave me an extra ten years to live.”
https://www.whitecollaradvice.com/whats-it-like-in-the-priso...
Remember, maximum security is expensive.
It's an analogous situation to blackmail. Suppose Alice has found evidence that Bob robbed a bank. Alice is legally allowed to reveal that evidence to the police, but is under no obligation to do so outside of a subpoena. However, even though both choices are legally permissible, Alice is not allowed to make her choice be conditional on receiving payments from Bob, as that would cross the line into blackmail.
Plea bargains are a form of extortion, and should not be part of the legal system.
So you think that every case should be tried, even if it's plainly obvious the perpetrator is guilty? After all, even if the perpetrator has a 1% chance of winning, there's no reason not to go to trial under that system.
If the perpetrator is willing to plead guilty, there is no need for a trial.
Threatening people with massively larger penalties if they exercise their right to a trial rather than take a plea deal (often time limited before the defense has a chance to see the evidence) is coercive extortion and is morally wrong. There is plenty of evidence of innocent people (especially poor people) taking plea deals due to these prosecutorial tacits of threat and decite.
It’s okay for guilty people to be offered plea deals. It’s actually probably in their best interest sometimes.
He did a thing, that doesn't mean that thing qualified as a felony, or even a crime. It certainly did not merit 50 years in prison.
> It’s okay for guilty people to be offered plea deals. It’s actually probably in their best interest sometimes.
It is simply not OK to threaten people with penalties that are well more than an order of magnitude higher than the plea deal.
This isn't the kind of plea deal that furthers justice by obtaining a cooperative witness in a more serious case. This sort of plea deal is offered to advance the Prosecutor's career.
> Swartz was very rich, and well represented.
As the article explains, Swartz was out of money, well into debt, and faced with begging people for money to continue fighting the case.
But as far as this case goes, I’m not sure. The alleged crime is a very technical one. The facts are all recorded and they paint a clear picture. The only question is how they apply to the law and whether or not they raise to the level of a crime.
That’s the job of a jury. They will receive a document with a list of charges, and the prosecution will lay out a very clear roadmap as to how each element of their case maps to the elements of the relevant statutes being charged.
Since this is a very technical crime, most of the evidence would be document-based and very convincing to a jury. It’s hard to create reasonable doubt in such document-heavy cases. So the only question will be how many charges can the prosecutor make the facts fit. That’s where these “50 years” claims come in, by stacking charge after charge in serial.
But importantly, neither the prosecutor nor the jury decide the sentence. That’s the job of the judge under the sentencing guidelines. This is what makes those “50 years” claim of the prosecutor bogus, and what any well-represented individual should understand.
I think Swartz did understand that because he opted to go to trial.
I get that people want there to be a clear moral story here. One perspective is that Swartz was a child prodigy, a beloved activist, someone who challenged the system, and then succumbed to pressure when it bore down on him with the full weight of the federal government.
But it’s not as clean as that. On the other hand he was a well connected, high net worth individual who repeatedly flaunted the system, and thought he would never face consequences. In my opinion, that’s the profile of someone ripe for heavy handed prosecution.
I am sympathetic to both perspectives.
Others have brought up people like Lori Loughlin. No one would talk about her or any of the college scandal wealthy parents going into debt.
You said this about the other commentator. I’m not sure how you aren’t doing a similar thing here. Prosecutors words are believed at face value. Phrasing Swartz as a high net worth individual as if it was known he was still a high net worth individual at the time of his passing. Since now you said you believe he spent a lot on his defense. And the other commenter said he didn’t have money. If you spend all your money. You aren’t high net worth any more.
> so I think it's hard to complain that he was bullied by prosecutors when he was well-represented.
This is simplifying any justice system situation in my opinion. Which adds to the point of you doing similar to what you thought the other commenter is doing. And yes I am also doing a similar thing with my adamant defense of Swartz!
You've implied I'm taking the prosecutors words at face value, but I'm really not basing any of my opinions on the prosecutors words at all. The plea deal was communicated by Swartz' lawyer. The evidence against him is documentary and laid out in the indictment. There's expert testimony as well. Swartz' consciousness of guilt is laid out in video evidence as well as on his blog in his own words. There's very little the prosecutor has to say in the case against Swartz.
> If you spend all your money. You aren’t high net worth any more.
I said Swartz was prosecuted because he painted a big target on himself. Yes, being high net worth and well connected to billionaires is part of that. It really doesn't matter what his net worth was at the time of his demise, when at the time he allegedly committed the crime and caught the eye of prosecutors he was a high net worth individual.
It was a fairly unique and novel application of those laws and some of the charges depended on making arguments about what the intent was with the data. There absolutely was a great deal of prosecutorial discretion and even imagination in coming up with those charges. We will never know if which of those would have stuck.
> the profile of someone ripe for heavy handed prosecution.
It was most certainly a political prosecution.
I don't really think courts should take guilty pleas. I believe in some times/places in the middle ages, courts would not take guilty pleas in case the prisoner had gotten coerced into pleading. Sometimes, we have people with mental illness or other issues that will plead guilty to crimes they didn't commit.
Along the same lines of "reasonable doubt" in the US generally being enough to escape criminal conviction, I think we should err on the side of safety and perhaps even inefficiency in (not) letting the state exercise its monopoly power of force, coercion, and imprisonment against anyone for any reason, ever.
If it was a slam dunk at trial and 6 months was a fair sentence, then why is there a need to threaten so much more to avoid granting him his right to a trial?
Aaron's case is not unique in this regard and is indicative of the casual brutality and inhumanity inherent in the way that our justice system works. We desperately need to threaten reform how plea bargaining works and the amount of power we give prosecutors.
What actually happens in sentencing is that you look up the relevant sentencing guidelines in the (public, easily downloaded) federal sentencing guidelines. The guidelines are broken up by groups of statutes. They establish offense levels, from 1 (jaywalking) to 43 (mass murder). You take the offense level and look it up on a chart against your offender history (Swartz had no criminal history) and get a sentencing range.
Each guideline starts with a (usually low) base offense level, and then a series of clauses that adjust that level upwards or downwards based on the conduct charged. For CFAA, modifiers include stuff like using sophisticated means to evade detection, or making a bunch of money, or putting critical systems in danger.
The actual sentencing is a phase of the trial, occurring after conviction. The court has the probation office write a PSR, which is a confidential memo suggesting a sentence based on the guidelines. The prosecution argues for upwards departures for the PSR; the defense does the opposite; the judge ultimately decides.
Crucially: the sentencing guidelines generally don't work by multiplying the number of counts against the suggested offense level. Rather: like charges group, and you're generally sentenced based on the highest offense level of the group.
We don't really have to guess about what Swartz faced. We don't just have this New Yorker article to go on; Swartz's own attorney discussed the likely sentencing ranges. This article suggests that prosecutors were looking for 6 months on a guilty plea (they seemed hell-bent on coming up with some custodial sentence for Swartz; there seems to be something to the idea that they had a grudge against Swartz). More importantly, though, we have some of their rationale for the supposed 80 month sentence they said they'd seek if Swartz went to trial: they intended to argue that Swartz incurred 2 million dollars worth of losses. That's a self-evidently stupid argument, because there's no plausible way Swartz could have recouped even $1 from his offense, let alone $2,000,000. The documents he hoped to release had virtually no commercial value. Any damage (ie: worker hours burned cleaning up for what he did) he caused was incidental, and likely well below six figures. But the guideline offense level modifier implies the opposite of this fact pattern.
Swartz's attorney believed it was likely that had Swartz gone to trial and lost on all counts, his ultimate sentence would still could have come in below the level at which the guidelines recommend straight probation; that is: he believed Swartz could have gone to trial, lost, and still did better than the plea deal offered by the prosecutors.
It's not really the fault of anyone on HN that these lurid potential sentences get tossed around in discussions, because federal prosecutors issue press releases that discuss the maximum possible sentence in those terms. The media abets that dishonesty by repeating the claim, or by doing insufficient homework and using the same math.
You should be irritated when you read written sources that talk about naive maximum sentences this way.
At any rate: there is no chance Swartz was unaware of any of this. Not just because he had an excellent attorney who no doubt explained all of this stuff very early on in the process, but because Swartz was exactly the kind of nerd who would have had the federal sentencing guidelines bookmarked somewhere in his browser.
And agree completely with your assessment of prosecutors and press releases - I told my US Attorney that I only wanted to see him on TV after a conviction. Alas, I hate defending prosecutors, but it seems completely unfair to blame her for his death.
As you suggest, my guess was that the sentence was largely going to be driven by the damages. My understanding is that the “victims” had been sufficiently browbeat into being reluctant witnesses and as you suggest, it would have just been cleanup costs.
There are crimes where I think 2B1.1(b) probably makes sense (like, if you're literally stealing, or deliberately incurring monetary damage --- remember, your intent in committing a crime is extremely important, despite a common message board belief that it is somehow unknowable and a non-factor in legal decisions). But in a lot of cases, it's literally just the induction variable in a loop, and it makes no sense to boost an offense by 10 levels because you wrote "2000" in your for-loop instead of "20".
It's 2B1.1(b) that takes you from offense level 8 (0-6 months, probation eligible) to level 24 (5 years) based on 2 million dollar of incurred loss.
Again, though: the 2 million dollar figure is highly implausible. Prosecutors could have argued for it (they can argue anything they want), but it's hard to see them getting it for a non-remunerative crime that involved publishing academic journal articles.
Swartz's attorney was probably a bit rosey-eyed here, though: figure any charged computer offense probably incurs losses at least in the mid-5 figures (almost mechanically, because real companies have insurance obligations to conduct external forensic investigations when incidents like this happen), and you get to a year and change sentence pretty easily.
Actually this ran in parallel with the tail end of the Jammie Thomas-Rasset lawsuit, in which the various damage figures thrown around for sharing two albums' worth of stale, degraded-quality top-40 songs did include one in the seven-figure range.
So 6½ years at most, quoting tptacek's comment.
https://www.popehat.com/2013/02/05/crime-whale-sushi-sentenc...
Well, it is called 'guidelines' and your post uses words like 'suggesting'. So if relevant people went crazy and just decide to ignore these guidelines and choose, say, 20 years, would such decision be legal?
Note here that to reach 20 years, you have to do more than disagree with the guideline offense levels; you have to somehow disagree with the grouping rules. 20 years wasn't on the table to begin with (again: the prosecutors threatened a much lower sentence), but it couldn't seriously have been put on the table either.
I was unaware of these nuances, and remember at the time there was a lot of talk of using the legal sledgehammer to set an example (possibly the same media echo chamber you mention).