The Aaron Swartz Prosecution & Plea Bargaining
techdirt.com
techdirt.com
"In this hypothetical scenario, those 10 years in prison would, practically speaking, have consisted of six months for his original crime (the sentence Ortiz actually thought he deserved) plus a nine-and-a-half-year prison term for exercising his constitutional right to a trial."
There's something vaguely similar with people (at least in the UK) wrongly convicted and sent to prison. To qualify for early release they have to atone for their crime, which means accepting guilt and feeling remorse. But you cannot feel guilt nor remorse for a crime which you did not commit, and so they don't get early release. "Say you did it; do the time; you'll be out soon enough."
See also Japanese police and courts - suspects are held for much longer than in the UK; they're bullied and intimidated; and once things go to trial there's a > 90% conviction rate.
Here's a 24 minute BBC radio documentary about forced confession in Japan:
(http://downloads.bbc.co.uk/podcasts/worldservice/docarchive/...)
Sometimes they have multiple confessors to a single crime.
The plea system is institutionalized torture.
Someone please explain to me how the threat of 50 years in federal prison and a million dollars in fines for downloading a bunch of academic papers can be considered to be anything other than "excessive" or "cruel and unusual".
Also I really don't see the cruel and unusual here. It's the same procedure that everyone else gets. He should have taken this opportunity to help shape a movement for the change of CFAA and ITERA, enter the list of "elite hackers" that have been wronged by their country (for a great PR boost nonetheless), and bring to the spotlight his main cause of information liberation. He probably didn't take that route and opted for suicide because he was depressed or had some mental issue that was aggravated (but not caused by, I make the distinction) because of the pressure of his conviction and the existing (though very low) possibility that he might actually do hard time.
Don't get me wrong. I'm on Aaron's side, but all the fear mongering and hyperbole lately is unbecoming. We as a community are right now grasping at straws trying to make Carmen Ortiz as this horrible monster, when she was basically just a woman doing her job. She's not Charles Manson. Let's battle the CFAA and try to get things to change instead of focusing on a little woman who will most probably never suffer any repercussion for this, and seriously it's doubtful that she deserves any either.
That was also true of torture, flogging, stocks, breaking on the wheel, burning at the stake, the heretic's fork, knee splitters, the rack, thumbscrews, and the other various sadistic forms of punishment that every European civilization routinely used on its prisoners before they were condemned as barbaric and banned.
They were not regarded as "cruel and unusual" because they were uncommon, but because they went against contemporary ideas of fairness, civility and efficacy as legal tools.
I would argue that the threat of 35 or 50 years in a federal prison for a victimless act of civil disobedience is similarly "cruel and unusual" against today's ideas of fairness, civility and efficacy.
On another point, you mentioned a plethora of violent punishments, which the topic at hand isn't. First it wasn't a punishment yet, second it wasn't violent, third it isn't unusual at all as it's the same process used for almost every criminal trial specially in an accusatory trial, and fourth cruelty is in the eye of the beholder. On this last point I'd like to make one distinction: cruelty is mostly referred to in two different contexts: 1) Physical pain: in which case there was none to speak of here, and 2) Disregard for the suffering of others (irregardless of physical pain): in which case she is both crueler than you and me because she prosecuted a bright young man with all means available to him to the point of having an influence in his death, and as cruel as both of us because we've all been in a position in which we have not cared about the suffering of another human being, either because you're (not directed to you, just trying to make a point here, don't take offense) not interested in middle eastern politics and international conflict, or because I didn't want to give my last dollar to that poor homeless man on the corner with arthritis.
If he pleaded guilty, he was offered a high likelihood of serving only a short prison time.
I will set aside my contention that even a day of time in a federal prison is disproportionate for what amounts to a TOS violation, and instead focus on the fact that a short prison term would only come with a guilty plea.
The prosecutor used the threat of 35-50 years in prison to get Aaron to accept a guilty plea. If he chose to plead not guilty and attempt to defend himself, it would cost well over a million dollars in legal fees, and if he were found guilty anyway, the judge would be strongly predisposed to make an example of him by giving him a very long, punitive sentence.
A prosecutor forcing someone to admit guilt by threatening a life-destroying cruel and unusual punishment if they do not admit it - why, that is the very essence of using torture to extract a confession!
> We as a community are right now grasping at straws trying to make Carmen Ortiz as this horrible monster, when she was basically just a woman doing her job.
Isn't her job to pursue justice? Nothing about this strikes me as just.
> Isn't her job to pursue justice? Nothing about this strikes me as just.
Her job is to pursue justice within the boundaries of stablished laws, which technically and pragmatically Aaron did break. She didn't create the CFAA and it's modifications via the Patriot Act and the ITERA. That is what we should be focusing on, not some witch hunt directed to a person who most invariably was just performing her job duties bound by the law she claims to uphold.
I consider crimes of violence to be the use of aggressive force against a person or their property. After some research, this appears to disagree with the generally accepted definition, so feel free to reread my comment with this in mind.
> Her job is to pursue justice within the boundaries of stablished laws, which technically and pragmatically Aaron did break.
The "just following orders" defense. I reject such a notion. If "just following orders" or "just prosecuting within the boundaries of the law" leads one to perform or support unethical actions, then one should refuse to follow those orders or prosecute those laws.
> That is what we should be focusing on, not some witch hunt
While I am all for the repeal of the CFAA, I do not think that it is unreasonable to seek justice against someone for abusing the justice system (torturous use of plea bargaining).
I see lawyers as some sort of bad kind of software developers but for humans.
They write the shittiest code possible (in my view on purpose) such that each time it can be interpreted slightly differently depending on who's being accused.
This code is very hard to refactor, it calls various routines from libraries that have been long abandoned yet amended in other routines or functions that 'decorate' and change behavior.
And then when there's something to understand or change they pretend lots of money to give you their interpretation and or provide changes.
Law's are not bad intrinsically but it should be taught in school and be as simple as possible, or in other words, it should use the KISS principle.
* Lots of laws look crufty to casual observers, but the reason is that they have been amended again and again and again over the years to accommodate various edge cases.
* Laws are a structured, formal attempt to model human bevaviour, which is messy, fuzzy and unpredictable except at the statistical level. A clear, simple law may not be the best way to govern unclear, complex agents in a complex system.
The temptation to throw out our laws and replace them with something simple and clear is dangerously close to the Second System Syndrome to which well-meaning software developers often fall prey.
I'm not talking about NIHS or rewrites, I'm talking about refactoring.
And lots of edge cases and special things are not a good thing in law or software I think.
http://quandyfactory.com/blog/30/software_as_a_model_for_gov...
I do believe we need to exercise caution, balance and good judgment, and that most of the time, careful refactoring is more prudent and effective than throwing out the existing code and starting from scratch.
That is going to far. The plea system seems to be loaded with problems, but if you don't want to make a plea bargain you can still simply go to court. Which is what you'd be doing without a plea system anyway. A sufficiently scary threat won't make you confess, it will make you choose the court route.
The implication here is that things would be the same without a plea system. I disagree. I think that if people regularly faced the kind of sentences that they are threatened with under the plea system, there would be political upheaval. 50 years for trespassing and downloading files? It's absurd.
The plea system as it stands is simply a means for prosecutors to acquire more convictions, and it is absolutely unacceptable. They are blatantly gaming the system, so the system needs to be changed.
That said, I don't think abolishing plea bargain would necessarily lower the maximum penalty for a given felony (which is what the 50 years is). There is a great number of things that come under the name "wire fraud", some of which deserve years in prison and some of which don't. That is why the law gives a range for the possible penalty and it is up to the judge to pick the right number in that range. There is little reason to believe a judge would have opted for the upper bound of the range in this case.
The problem I see with plea bargains (from an outside perspective, we don't have plea bargains where I live), is that they allow one to sidestep an honest and public trial in favor of such a bargain, thereby replacing justice by backroom deals. Sometimes this works in the favor of the prosecution, and sometimes the defendant gets of lightly.
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?artic...