Aaron Swartz: Unequal Justice for Web Activists vs Health Care Executives | Hacker News Reader

Aaron Swartz: Unequal Justice for Web Activists vs Health Care Executives

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And, of course, none of those bankers are in jail, where they should be rotting.

Even if a company is "too big to fail", its executives are NOT "too important to jail"!

To put this in perspective, the people who have received similar sentences to what Aaron was facing were folks such as John Rigas (Adelphia), Bernard Ebbers (WorldCom), Ken Lay (Enron), or Michael Milken. Folks who maliciously defrauded thousands of people out of totals of billions of dollars, for their own financial benefit.

No, the _maximum_ sentence under the Constitution and the statute was 35 years. The sentence he was likely to receive was 6 months if he took the plea bargain (and there are rumors that a no-jail plea was considered), or less than a year if he went to trial and was convicted.

There's a huge difference between the statutory maximum sentence and the sentence people actually receive. Shoplifting is petty theft and in almost all states that's punishable by up to a year in jail, but most first-time offenders get off with community service.

Aaron was charged with wire fraud, which covers crimes ranging from skimming a few bucks off a credit card reader to trying to take down the stock market as a whole. The _maximum_ sentence Aaron faced was 35 years, but there was no way that any judge would ever sentence him to that.

In fact, the United States Sentencing Guidelines [1] were introduced about 20 years ago to make sure that judges were issuing sentences that were proportional to the crime committed. In short, the severity of crimes is ranked on a scale from 1 to 40+, and the criminal history of the defendant (i.e., how many prior convictions) is rated from 1 to 5. From those numbers, a sentencing range is calculated.

Here, the crimes Aaron was charged with are a severity of 7 (of 40) and he has no prior convictions (so he's a criminal history of 1). On the big old matrix [2], that's a sentencing rage of 0-6 months. Even if you assume he picks up a few more points along the way, he'd have been looking at 4-10 months. Judges can only exceed the Guidelines in extreme cases and most sentences higher than the Guidelines are struck down on appeal.

For the gory details, see here [3] where the full Sentencing Guidelines analysis is performed.

[1]http://en.wikipedia.org/wiki/United_States_Federal_Sentencin... [2] http://www.ussc.gov/Guidelines/2012_Guidelines/Manual_HTML/5... [3] http://news.ycombinator.com/item?id=5063435

The fact that Aaron faced jail time that was appropriate only for people who maliciously defrauded others to the tune of billions of dollars for personal benefit is the problem. The fact that the only way to receive a fair sentence was to give up the right to a trial is the problem.

If the outcome of a trial was potentially 6 months in prison then the likelihood he would endure a trial would be far, far higher.

Instead the criminal justice system was abused, and a disproportionate punishment was put on the table to scare Aaron (as it has been used to scare so many other defendants) into taking a plea bargain and give up on having his day in court.

That's a perversion of justice and something that we should in no way be comfortable with.

Any attorney Aaron hired would be able to read the sentencing guidelines manual (it's published in a convenient softcover version that any federal criminal attorney has on his/her desk) and inform Aaron that the maximum realistic sentence was less than a year, and that as long as the sentence was on "Zone A" on the chart I provided, the judge would be free to give probation with zero jail time.

The maximum sentence was 35 years because that's the maximum penalty for all forms of wire fraud. The prosecutor is constitutionally required to inform the defendant of the maximum sentence. If you ever sit in on a plea colloquy you'll hear the prosecutor tell the defendant the maximum sentence and the defendant acknowledge the maximum, even if everybody knows that the sentence will be time served, or probation, or just a fine/restitution.

I don't know why Aaron's lawyer dropped the ball on this.

> I don't know why Aaron's lawyer dropped the ball on this.

We don't know he did.

From his (and Lessig's, who was also involved) statements, it looks like he got the feeling that Heymann and Ortiz were not bluffing, that they wanted to make an example out of Aaron and lock him up for real. We can only second-guess their motives (and many have done just that, in the last four days), but from what it has emerged until now, there was a real sense in Aaron's legal team that the prosecution was bent on throwing him in jail, even just for one day, and would have had it from any judge in the circuit. For sure, there was no incentive for the prosecution to be lenient: no loot to recover, no co-conspirators to turn, no scandal to keep quiet, nothing.

I guess we'll know a bit more about all this in a year or two, when investigative books will come out and people in the US Attorney office will start unbuttoning, or maybe after the next Presidential cycle if there is a party switch at the top.

Here's the opinion of someone with long experience with similar cases:

"Using just the base level of 6 and $70K in loss, Aaron would not be eligible to serve any of his sentence in a halfway house or on home confinement. He would be looking at 15 to 21 months of incarceration. That number could get higher quickly. Section 2B1.1 increases the base offense level to 12 if the conduct involved use of an 'authentication feature' or 'unauthorized access device'."

http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-l...

Hard to give this article the benefit of the doubt when it comes to get details and particulars right with this line:

> Aaron Swartz was a prodigy who developed the RSS system for disseminating updates on web-site contents

He worked on the spec at a young age. But he did not develop the system.

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