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Comment by analog | Hacker News Reader

"the conduct of the prosecutors was close to standard procedure"

This is part of the problem. It is standard procedure and it needs to be changed. Firing those who've acted too aggresively will help to change the way prosecutors operate.

"If it was wrong of the prosecutors to make an example out of Aaron, it is equally wrong to make an example of the prosecutors"

No it is not equally wrong because we're not suggesting anything like the same punishment. Losing your job versus facing decades in prison are orders of magnitude apart.

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> Losing your job versus facing decades in prison are orders of magnitude apart

Swartz was not facing decades in prison. He faced charges whose maximum sentences added together reached several decades, but it was all but impossible to actually receive that kind of sentence.

First, the Federal sentencing guidelines scale the sentence based on the severity of the particular instance of the crime. Swartz's was low on the scale for the various crimes he was charged with.

Second, some crimes are grouped. You can be charged with several crimes from a group, but you are only sentenced for the one in the group with the longest sentence. I believe this was the case with the Swartz charges.

PS: if PG ever decides to monetize HN, and interesting approach would be a "show me who down voted" button that costs $1 to use. I'd pay $1 to see who down voted this.

Your beliefs on the length of Swartz's possible jail term are contradicted by the US Department of Justice themselves.

"AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million." [1]

[1] http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR....

The DOJ lied in the press release. They have a habit of doing that. There was no possibility that Swartz would face 35 years in prison. You can be upset about that, and that's reasonable, but you cannot synthesize from that upset the idea that Swartz actually could have spent 35 years in prison.

The consensus among former prosecutors and defense attorneys writing about this case is that if Swartz had been convicted on all counts, he might have faced as many as 2 years, but that he also might have avoided a custodial sentence even if he was convicted.

Did anybody write this before Aaron's suicide?

And based upon what evidence?

Go look it up yourself.

It's your claim. You provide the evidence.

If you'd like to go from "wrong" to "militantly wrong", that is your right.

Your claim is that he would have faced a maximum of 2 years, which differs substantially from what Swartz's own defence have claimed.

Now, if these sources of yours had provided their opinions before Aaron's suicide then I'd be more inclined to believe them. That they presumably only developed these opinions after the suicide seems a little convenient to me.

That is neither what I claimed nor an accurate statement about what Swartz's attorney said.

"he might have faced as many as 2 years, but that he also might have avoided a custodial sentence even if he was convicted."

This is in direct contradiction to what Aaron's lawyers have stated. Jail time was required, and if he did not plead guilty then the DOJ would push for a 7 year sentence.

Here you conflate the position of the prosecutors as related by Swartz's counsel with the actual opinion held by that counsel about the outcome of a conviction. The two are obviously not equivalent.

If the DOJ are pushing for 7 years, then "as many as 2 years" seems in direct contradiction to me.

Swartz's lawyer did not believe 7 years was realistic.

The DOJ did not lie. They just made a correct yet misleading statement.

Incidentally according to Aaron's lawyer, the prosecutors were going to be trying to convince a judge of a lot more than 2 years. Whether they would have succeeded in that is an unknown question.

Yes, the nightmare scenario they scared Swartz with was 6-7 years. Which clearly does qualify as a nightmare. Aaron's last lawyer did not believe that was a realistic threat.

Either way: my understanding is that 35 years is an overt misstatement of how sentencing for repeated counts under CFAA works. I stand by the word "lie", both in its technical and moral senses.

I still disagree on the technical sense. 35 years is within the ability of the judge to assign. Of course the judge wouldn't, and if the judge did it would be reduced on appeal. But they claimed that that was the statutory maximum, and if you read the statute you can readily confirm that.

I believe but cannot (due to crappy airplane wireless and the fact that I'm using my phone to read) confirm that there are elements missing from Swartz's offense that would have prevented a maximal sentence.

Either way, I assume we agree that the DOJ published the press release knowing full well Swartz would not actually be subject to 35 years.

Here is a great article illustrating my point (but with whale sushi, not the CFAA):

http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence...

That is a good article.

Ironically I've eaten at that restaurant. It was quite good before it was shut down. (No, I never had the whale sushi.)

It bugged me that I didn't have a better answer, so I tracked down the applicable 2012 sentencing guidelines:

https://www.justia.com/criminal/docs/sentencing-guidelines/s...

... and in the interpretation most generous to the DoJ I came up with a sentencing grade of 27, which works out to 7 years for a first-time offender.

I think if you read through the guidelines (they're interesting!) you'll see right away that there was no way he could have gotten 35 years. I stand by "the DOJ lied about the sentence in the press release".

While they lied in the sense that you are using here, there was clearly a game of intimidation going on: they upped the number of charges from four to 13 late in the game. And as a negotiating technique, the pressure was increased.

I am reminded of a quote attributed to Emanuel Lasker ‘A threat is more powerful than its execution’.

I'm not sure what that point has to do with mine or 'tzs'. In any case, we agree.

It should not be a matter of degree. Selective punishment is unjust whether it is done in a courtroom or a kindergarten class.

I don't know that this is selective punishment. It does seem to me that Heymann forgot that his job is supposed to be about justice.

The system in which he works doesn't necessarily remind prosecutors of that as often or as impactfully as it should, and you're right, we need to fix that. There definitely are structural issues here that start with the knee-jerk "tough on crime" mentality of many voters.

That's exactly why we need to make as much noise as we can -- to show the politicians and prosecutors that some of us feel strongly that the system has been over-optimized in the direction of prosecution.

I don't know that this is selective punishment. It does seem to me that Heymann forgot that his job is supposed to be about justice.

The law is about the law, not about justice. They may be related but they are not the same.

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