Comment by vacri | Hacker News Reader

Comment by vacri | Hacker News Reader

Parent Full thread

A relative of mine embezzled money from her family business, to the tune of high five-figures. If you don't take motivation into account, how should she be sentenced? She was found guilty and sentenced, but before reading further, what do you think should have happened to her?

If we take motivation into account (as the court did), does it change how you think she should have been treated by the court to know that she didn't keep a cent of the money herself, but spent it on giving food and clothes to homeless people, organising it herself rather than through a charity? She wasn't preying on the weak, she was misguided and trying to help society rather than get stuff for herself - and the law is supposed to be about protecting society.

Motivation is an important aspect of any crime, and prosecutors should be looking for appropriate sentences, not the harshest one they can make stick. Besides, his case is a focus point that gives an excellent chance to start looking for reform rather than sweep it under the carpet as 'business as usual' - because prison sentences in the US have exploded ridiculously in the past 20 years.

> Motivation is an important aspect of any crime, and prosecutors should be looking for appropriate sentences, not the harshest one they can make stick.

I don't think the prosecutors here would disagree. That's why sentences are pushed for (on both sides) based on what the motive behind the crime was.

There was a plea bargain on the table for no jail time, which MIT rejected, and then later some number of months in jail. Given that "Swartz faces up to 50 years in prison if convicted on all charges" was the latest maximum sentence it is very hard indeed to argue that the prosecutors were trying to get the harshest sentence.

The thing they were really trying to do was not have the trial, which is something I would expect them to do given the structure of the legal system.

But that's part of the problem. US Citizens have a right to a trial by jury. It's one of the basic rights. If the prosecutor is abusing their power to deny that right there is something fundamentally wrong. Trying to throw every possible crime at someone no matter how tenuous in order to extort a plea bargain or get just one to stick to improve your prosecution record is an obvious distortion of the original intent of the system. Also, bankrupting the defendant and/or freezing/seizing assets in cases where the crime is not related to the assets being frozen is also extortionous.

Avoiding trials altogether because of the structure of the legal system is the wrong approach. Improving the expediency by which the legal system can provide justice is the right approach. I can't believe people are willing to sanction and even justify means that avoid justice. The fact that we have one of the greatest rates of incarceration that we have a failed justice system.

> Trying to throw every possible crime at someone no matter how tenuous in order to extort a plea bargain or get just one to stick to improve your prosecution record is an obvious distortion of the original intent of the system.

Except that a grand jury has to sustain that the charges are at least "better than tenuous". Once the case is resolved one way or the other the defendant can't be tried for it again (Constitutional 'double jeopardy') so the prosecutors have to bring any charges that can hold up (this is why Federal sentencing is wonky as well).

> Avoiding trials altogether because of the structure of the legal system is the wrong approach. Improving the expediency by which the legal system can provide justice is the right approach.

Uh, plea bargains are the #1 way the system is made more "expedient", you can't have your cake and eat it too. Feel free to continue putting words into my mouth about "sanctioning miscarriage of justice" though.

> Uh, plea bargains are the #1 way the system is made more "expedient", you can't have your cake and eat it too. Feel free to continue putting words into my mouth about "sanctioning miscarriage of justice" though.

What the heck. Forcing plea bargains on 96% percent of accused is just so we can be "expedient" for the other 4%? How does that make sense? Other countries get by just fine without plea bargains. Maybe we could get expedience by, you know, focusing prosecution effort on serious crimes or ones that actually have victims.

> Feel free to continue putting words into my mouth about "sanctioning miscarriage of justice" though.

You might want to read up on how plea bargaining is viewed in other countries. There are some that are of the opinion that plea bargains are "miscarriage of justice", and you seem to be defending it as a perfectly fine practice.

(edit: not sure what I think on plea bargains generally. But in this particular case it seems pretty ridiculous.)

> Forcing plea bargains

I'm not sure that we agree on the meaning of the word "forcing".

> Other countries get by just fine without plea bargains.

Yes, I'm often reminded of how pathetic the United States is. But with that in mind those other countries have different concepts of the legal system (the vision of what it accomplishes, the policies, everything). I'm not here to claim that the U.S. legal system is 100% appropriate to the task, but instead that the prosecutors are going to the job with the resources that they have. If Congress significantly reduces the category and criteria of what counts as crimes by getting rid of the stupid stuff then great, but that's not the system the prosecutors are in now.

> Maybe we could get expedience by, you know, focusing prosecution effort on serious crimes or ones that actually have victims.

Do you have any specific cases in mind involving serious crimes or crimes with more deserving victims (since apparently MIT doesn't count) that were not prosecuted due to the resources needed being assigned to the Swartz case?

> You might want to read up on how plea bargaining is viewed in other countries.

Please don't take this the wrong way but I don't operate my life based on opinion polls. If I'm right, then I'm right, and if I'm wrong (which is certainly possible) it won't be because Bjørn and Herr Müller have different opinions about what plea bargaining is and is not, it will be because I'm wrong.

What the heck. Forcing plea bargains on 96% percent of accused is just so we can be "expedient" for the other 4%? How does that make sense?

How is the prison industry to lobby for more prison-building if our current prisons aren't filled past capacity? If the accused are allowed their Constitutional right to a trial, we'll have to double the spending on courts just like we've doubled the spending on everything else!

Oh, wait...

http://bjs.ojp.usdoj.gov/content/glance/exptyp.cfm

It has been said, not quite accurately, that a prosecutor can get a grand jury to indict a ham sandwich. Grand juries are almost negligible in their power to prevent prosecutorial abuse.

> The thing they were really trying to do was not have the trial, which is something I would expect them to do given the structure of the legal system.

So basically, charge someone with something ridiculous, and then be offer a sweet sweet deal, such as "only 6 months jail time and confess to 15 felonies. Oh and if you want to go trial it will cost you and your family years of drama, all your savings, and risk 50 years in prison". How nice of them! Let's suppose someone offers you this deal. Does it even matter if you're innocent? Your life is going to be messed up either way. Maybe you cave under pressure and take the deal. How is that furthering the cause of justice?

Oh, and in theory, there's this little thing in the US called the Sixth Amendment:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence"

> So basically, charge someone with something ridiculous, and then be offer a sweet sweet deal, such as "only 6 months jail time and confess to 15 felonies. Oh and if you want to go trial it will cost you and your family years of drama, all your savings, and risk 50 years in prison".

The charges weren't ridiculous. If Aaron wanted to avoid the trial he could simply have avoided repeatedly breaking into MIT's open network to access JSTOR. The charges (even the amended ones) were approved by a grand jury. The prosecutors were never pushing for 50 years in prison.

See, this is all part of what I complained about in my other comment about prevarication.

But either way, the point is kind of moot. Aaron chose to be in that situation, they didn't change the legal code just to suit him. Taking the plea would have been the smart thing but he was never under any obligation, as the sentence he would get in a jury trial would be based on the Federal sentencing guidelines (and his expensive attorneys could tell him that too).

Regarding the Sixth Amendment, plea bargaining is one of the tools used to ensure that those who do need jury trials have a chance at getting them expeditiously (or do you really think that Google really has a 5GB hard disk partition sets aside for everyone with a GMail account?).

> The charges weren't ridiculous

They were according to a retired federal judge: http://www.wbur.org/2013/01/16/gertner-criticizes-ortiz-swar...

from the article:

"She says she was troubled by much of what she learned and saw from the bench before leaving in 2011. And she says Ortiz should not have prosecuted Swartz." ... When asked if she was referring to the bad judgement of Carmen Ortiz, Gertner responded, “That’s right.”

Oh look, I can find a convenient mouth piece too (one who has defended a famous CFAA case, no less):

http://www.volokh.com/2013/01/14/aaron-swartz-charges/

http://www.volokh.com/2013/01/16/the-criminal-charges-agains...

You might instead argue that the law is ridiculous (e.g. I would agree that Swartz's conduct is not serious enough to warrant a felony conviction).

You might argue that there were certainly other cases which were more deserving of a U.S. prosecuting attorney's time (though I don't know how we would confirm or refute that). But the charges themselves are well supported by the indictment.

Ad Hominem.

You might try responding to the statements she made. For a retired judge to step into the public arena like this is quite out of the ordinary and it indicates to me that the behavior she witnessed in Ortiz was so egregious that extraordinary measures were called for.

So much for business as usual, happens all the time, nothing to see here, move along, move along..

Appeal to authority.

I at least bothered to respond with arguments at all (both mine and links to Olin Kerr's), and I did so without reciting high school debate knowledge under the assumption that HN readers are smart enough to figure out the difference between debating tactics and logical argument.

You have responded with a doubling-down of the appeal to authority, as if it would really be that unusual for a judge interested in a case which has lit the Internet and media on fire for a whole week now to get her name out there as well. In fact, the very article you linked calls it a "chorus of criticism". Oh, and a couple of clichés.

On the other hand, I did respond to the opinion you linked in by linking in other opinions. Yay, opinion war, go me.

I will say thanks for the article though, as even your talking head confirms that the 35-year sentence was never going to happen (and by extension, the 50-year sentence I must assume).

So on one hand you accuse people of being unqualified to hold an informed opinion, then when people come with people who are qualified, you say they are making an appeal to authority.

You are so full of shit.

People are often overzealous in labelling things logical fallacies.

"My argument is proved because person x thinks so" is a fallacious appeal to authority.

but there is nothing wrong with arguing "The fact that person x thinks this increases the probability that the argument is correct." as long as you correctly weight this factor amongst others.

Not all arguments need to follow the rules of deductive logic. There is such a thing as heuristics.

Motivation can be used during sentencing but it can also be used to figure out what crime someone's committed. If the police find a guy in my house, he might be trespassing or he might be a burgler: it depends on whether he's freezing and homeless or whether he lockpicks and a receipt indicating I bought a safe.

Reply on news.ycombinator.com