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As long as the DOJ are allowed to essentially lie to the public like this, why shouldn't it be fair to factor it in when trying to get an idea of how Swartz felt?

They lie to the public and exaggerate to the accused, in order to instill fear, prop up careers, and coerce the accused. Correcting the number of years doesn't qualitatively change how I feel about it much, and probably the same for Swartz.

Maybe people should focus more on it being a felony. The documentary left me with the feeling that Swartz was more distraught by the threat of becoming a felon[0], than with what length of time he'd be in jail. And it fits with the spirit of what most people are saying when they throw around "35 years": Is such a harsh punishment for downloading academic papers really fair?

[0] possibly the emotional and monetary burden of his defense on his family and friends, too

The DoJ isn't lying, the public just doesn't understand what these numbers mean. That's not the DoJs fault, but the publics.

That's not entirely true, it would be reasonable to expect the DoJ to be able to communicate the meaning more effectively to the public. It is however unreasonable to expect the general public to understand every bit of jargon from every field in every branch of government. For government to serve the people effectively it must be able to communicate with it.

It isn't DoJs job to speculate what the charges will actually result in, the "up to" although unrealistic is still accurate.

It's reasonable to expect for the media to accurately interpret this, but clearly that isn't happening.

It is also worth noting that once a maximum sentencing of 35 years is set, how ever less probable, loss aversion[1] kicks in and the accused in general is expected to get into plea bargain, plead guilty and be done with it.

It's really immaterial whether the accused knows the fine print or not. Here's a thought experiment I did on myself. I have to chose between the following two.

1. Challenge the accusation. There's a net probability of 1% of me sent to prison for 35%.

2. Plead guilty and face prison time of 7 years.

I'd chose #2 because the prospect of spending 35 years in prison terrifies me!

Reporters parrot 35 years probably because for an accused facing 35 years is a real prospect, however improbable.

[1] http://en.wikipedia.org/wiki/Loss_aversion

Two issues with that logic: (1) Swartz had extremely capable counsel who knew how federal sentencing worked, and (2) the prosecutors themselves threatened not 35 years but 7.

The plea deal offered wasn't for 7 years (that would have been insane). It was for something like six months. Six months in prison is still a travesty, but it is nothing at all like 7 years.

> the prosecutors themselves threatened not 35 years but 7.

Please pardon my ignorance here; but was there a non zero probability of Swartz being sentenced for 35 years? That is key here in my opinion. Because if there was even a remote chance then that's sufficient to play on the mind of Swartz and psyche him up.

And if the probability of 35 years sentence was exactly zero then one ought to sue the media and the ecosystem who have kept drumming up 35 years.

As the studies by the Nobel laureate and multiple others have shown when it comes to loss aversion, with such high stakes, humans don't think "logically". The capability of counsel is also irrelevant here.

Yes, there was a zero chance of Swartz ending up with 35 years. The judge could have sentenced to 3500 years as easily as 35 years, but both of those would have been turned over on appeal.

> As long as the DOJ are allowed to essentially lie to the public like this, why shouldn't it be fair to factor it in when trying to get an idea of how Swartz felt?

It should be a factor, for sure, but it should be a very small one. Swartz had much more information than the "35-year" number thrown out by the government. He had the benefit of his lawyers' advice, who thought that he could very well avoid any custody at all, and of the plea deal in which he would only have served a few months.

Also bear in mind that DOJ was not actually lying: a 35-year sentence was theoretically possible under the law. A judge could have imposed it. It was just extremely extremely unlikely.

I agree that what Swartz did should not be a federal crime (though it's easy to come up with similar conduct that should be). But there is a huge difference between a crime that will likely have been punished by 35 years' imprisonment (as many would have us believe) -- it's not easy to get up to that number even with a crime of violence -- and one punishable by a few months' imprisonment, or none at all.

I don't believe that's true, that a judge could impose 35 year, because the number 35 depends on the charges being sentenced individually and consecutively, which isn't allowed under the sentencing rules for that offense. I believe --- but am open to evidence otherwise --- that it is literally impossible for Swartz to have been sentenced to 35 years and have that sentence upheld.

I'm no expert on the rules for this offense. (Care to point me to the rules you are referring to?) But, as a general matter, it is in the court's discretion to impose consecutive or concurrent sentences. The guidelines may recommend concurrent sentences (if that's what you're referring to) but the court may disregard that recommendation so long as it indicates that it has considered the guideline and the usual factors that must be considered before departing from the guidelines.

For example:

> [A] district court retains discretion under 18 U.S.C. § 3584(a) and the sentencing guidelines to order that sentences be served consecutively notwithstanding the dictates of U.S.S.G. § 5G1.2. This discretion, however, is not sui generis; it is simply another manifestation of the district courts' departure power. Because this is so, a district court can only impose consecutive sentences in derogation of U.S.S.G. § 5G1.2 if it follows the accepted protocol for guideline departures.

United States v. Quinones, 26 F.3d 213, 217 (1st Cir. 1994)

I think I've determined that you're talking about offense grouping under USSG s. 3D1.2. [1] I had thought you were talking about something different: whether offenses are to be charged concurrently or consecutively. It is my strong suspicion that the 3D1.2 grouping rules are also only a recommendation (there is certainly no doubt that, generally speaking, the guidelines are not legally binding -- a district court need only consider them and the sentencing factors they articulate), but I have not found a definitive answer yet.

But this distinction -- discretion to disregard 3D1.2 v. discretion to disregard 5G1.2 [2] -- is largely academic. Section 3 of the guidelines deals with determination of the "total punishment." Section 5 deals with how to actually implement that punishment -- that is, how to use the traditional "one sentence per count" approach to implement the guidelines' "total punishment" approach. When there are multiple counts/offenses of conviction, the district court groups the offenses, and determines a total punishment for each group (that's 3D1.2). Then it implements that sentence by imposing it for each count (note: not "group") of conviction, to run concurrently. (5G1.2) But, under Quinones (in the First Circuit) it appears clear that a district court, after adequate explanation, may depart from the 5G1.2 methodology and impose the "total punishments" consecutively instead of concurrently. So, even if grouping under 3D1.2 remains mandatory (which I doubt), it would seem that the court would still be free to depart from the implementation methodology provided in 5G1.2 to impose that "total punishment" more than once, consecutively. Here that means that even if the district court grouped all five counts together and arrived at a total punishment of seven years, under 3D1.2, it could still impose that sentence five times, consecutively, under 5G1.2.

It's worth emphasizing that it would be quite unusual for a judge to do this, and she would have to quite clearly articulate her reasons for doing so in order for the sentence to not be vacated on appeal. This, I suspect, is why Popehat, for example, describes the operation of the guidelines as though it were mandatory -- typically an attorney can take for granted the fact that a judge will follow them or, at any rate, not depart too wildly. If you are trying to make a realistic prediction/determination of a defendant's sentence, the guidelines are where you look. But it also remains true that a district court may, with adequate justification, disregard the guidelines and have the sentence affirmed on appeal -- this includes the possibility here, however remote, of five statutory maximum sentences all to run consecutively.

[1] - http://www.ussc.gov/guidelines-manual/2011/2011-3d12

[2] - http://www.ussc.gov/guidelines-manual/2011/2011-5g12

Yes, Swartz likely knew it was nowhere near as bad as 35 years.

Still, you are not addressing what a felony conviction would mean. After spending millions (according to his father on the documentary) on defense, say he is convicted, sentenced to a best case of some community service, probation, and no jail time. He's now spent all his money, his name is sullied in the public mind, he may be barred from voting, he may be restricted by the terms of probation, he may have difficulty finding a job and housing[0], and hopes of a political career are pretty much demolished. On the documentary, Quinn Norton says, "He just didn't believe that he could continue in his life, with a felony, you know. He said to me one day-- We were walking by the White House, and he said to me, 'They don't let felons work there.' ... He really wanted that to be his life." (around 52:00)

So, you can say "he should have known what he was getting into" if you want, but "he didn't face much prison time" really rings hollow to me. The prison time was probably one of the last concerns on his mind, especially if he was "only" expecting a few months of prison. It would have been followed by several years of parole/probation and the rest of life as a felon.

And if a 35-year sentence was actually possible, then yes, the DoJ wasn't lying, but it only reinforces the arguments of everyone talking about how disgusting is the threat of 35 years for downloading articles.

[0] https://en.wikipedia.org/wiki/Felony#United_States

You wrote this:

>As long as the DOJ are allowed to essentially lie to the public like this, why shouldn't it be fair to factor [the purported 35-year maximum sentence] in when trying to get an idea of how Swartz felt? . . .They lie to the public and exaggerate to the accused, in order to instill fear, prop up careers, and coerce the accused.

That's what I am responding to. Beyond that, it sounds like we're not disagreeing much, except for this small point: it is true, as you say, that being convicted of any felony at all is a huge deal. And probably even more so for Aaron Swartz. But that doesn't mean that the difference between a six-month sentence and a 35-year sentence is not also incredibly significant!

I sympathize with those who think that this debate over the length of Aaron's potential and likely sentences misses the point. But I think that is just another criticism that ought to be leveled at media outlets and activists who continue to repeat the 35-year number without explanation or qualification. Those people repeat the 35-year figure precisely because they do regard it as significant and, often, reiterate it as a way of inflaming people's passions. I think this is a dishonest way of framing and spurring the debate. I, like you it seems, think that we would be better off reevaluating what is criminalized in the first place than flailing about, speculating about how long Aaron's sentence would have been, what the government "threatened him" with, etc.

In short: I take issue with the 35-year number not because I think that, in reality, the sentence was so short that Aaron had nothing to worry about, but because it is a misleading (because it is misinformed) starting point for any meaningful discussion.

Sentences are usually far less than the maximum penalty. Except, you know, when they aren't.

I know people who have received the maximum penalty even though it defied all logic and reason. For a first time offender. That didn't profit a cent. And had already been driven to bankruptcy.

But hey, it doesn't usually happen, so maybe possibly it won't this time as well! I hope you never have to roll the dice.

Was it drug related? Those are slightly different because of the 'war on drugs'.

No

Well without specifics your comment doesn't carry much weight. It's pretty well known that maximum sentences aren't given to first time offenders without a good reason. The burden is on you to show that this isn't the case.

One could, ahem, reasonably argue that reason was thrown out the window when prosecutors chose to prosecute Swartz. Given a lack of reason in prosecutorial discretion it would be unreasonable to expect reasonable sentencing.

The key is that it just doesn't matter what usually happens. Or what's most common. Or how it almost always works. At the end of the day it's a dice roll and the odds may overwhelmingly be in one direction but if there's a chance then there's a chance. It's a terrifying prospect no matter how slim the odds may be.

Prosecutors don't sentence.

94% are settled by pleading. Prosecutors decide whether they will charge you and can pick up charges they like. Chosen charges may make huge difference between years you risk to spend in jail. They can decide to prosecute you in a way that will cost you all your money even if found innocent or in a way that is only costly. The one who holds the most power in criminal proceedings is the prosecutor.

Much of the fault is upstream. MIT's leadership could have said "This is a trespassing case" and made it very difficult for an overdone federal prosecution to move forward.

But that doesn't excuse Ortiz and Heymann. They destroyed a global treasure, and shouldn't be permitted to continue in their jobs, no matter how protected they are from liability.

You should read the article I linked to, or, even better, the sentencing guidelines themselves, which I also linked to. Without the detail of how criminal history and offense level works, the system seems a lot more arbitrary than it is. It is not in fact a roll of the dice between the minimum and maximum sentence; there is no way in the federal sentencing guidelines for a first-time offender who didn't make a dime from the offense to reach the maximum sentence for any one offense, and no way to make the grouping offenses somehow not group.

For whatever it's worth, I think the behavior of the prosecutors in this case was abusive, and the idea of filing federal charges for what Swartz did is as preposterous as the fiction that he faced a 35 year sentence. Don't succumb to the is-ought fallacy. I'm just pointing out how the system works, and how NPR is failing to report it properly. It is better to know than not know.

I'm not sure you understand what guidelines are. They are merely suggestions. Not rules. In fact treating them as rules is unconstitutional [1]. So yes. Most of the time sentences fall within the guidelines. Except for when they don't.

[1] http://en.wikipedia.org/wiki/United_States_Federal_Sentencin...

The grouping rules in federal sentencing do not appear to be discretionary.

They are, Constitutionally, guidelines. However, a guideline range is required to be calculated and a judge is required to explain any departure from the guidelines. On appeal, a sentence out of the guideline range is much more likely to be overturned as abuse of discretion.

The NPR text should be more clear that the "35 years" was, like the possible fines, an "up to" number.

But, if that maximum-possible-but-unlikely number is "true enough" for blustery prosecutors – officers of the court! – to put in all their press releases and interviews, then it's also true enough to be relayed by other sources.

Yes, everyone should understand that any actual sentence, by plea deal or conviction, will essentially always be less. But unless another expert like Popehat goes on record, with their own offense-levels & history-categories sentencing-chart analysis, what's available for reporting is the prosecutor's claim. And since every prosecutor does the same "maximum" puffery, there is still rough comparison value from those press-release numbers.

The prosecution is lying about sentences. Those press releases are deceptive. Knowingly amplifying a lie, without context, is wrong. "True enough" isn't good enough. NPR is better than that.

While your point is valid, after US v. Booker, federal sentencing guidelines became exactly that - guidelines. The actual maximum punishments are defined by statute. If you catch a federal judge on a bad day, he or she can indeed sentence a defendant to the maximum allowed by statute for each count, and run all of them consecutive to each other. This is how some defendants wind up with multi-century federal sentences.

Example: Shalom Weiss was sentenced to 845 years in prison for a white collar crime (current projected release date: November 23, 2754). One of his co-defendants received 750 years. http://en.wikipedia.org/wiki/Sholam_Weiss

This rarely happens, however, and likely would not have happened in this case. More likely than not, he would have accepted a plea and wound up doing probation or a very light sentence (~6 months) in a minimum security prison. But a much longer sentence was in fact legally possible.

This is true. but, for perspective's sake, more needs to be said about Shalom Weiss than that he was sentenced for a "white collar crime." He looted a company of more than $450 million, which made it, up to that point, the highest-loss crime of its type in U.S. history.

As you have already seen many times before before, here is the actual statement released by the US Prosecutor's Office.

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

> 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.

Key Point: According to the actual documented statement released by the federal prosecutor, a statement which is still available on www.justice.gov, Swartz faced 35 years in prison and a one million dollar fine if convicted.

These are well known, easily verifiable, and indisputable facts. When NPR stated that "Swartz faced a maximum penalty 35 years in prison and up to $1 million in fines" they were directly citing actual statements made by the federal prosecutor's office. The federal prosecutor's office stated "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." That is what they said. It is not false. It is not an exaggeration. NPR is citing exactly what the prosecutor actually said.

Instead of quoting my own comment, which addresses your argument directly, I'll quote former federal prosecutor Ken White directly from the article I linked to:

People reporting on federal criminal justice — whether journalists or bloggers — routinely report on the statutory maximum sentence that a defendant could hypothetically get, an oft-ridiculous figure calculated by taking all the charged crimes and adding up the maximum punishment for each. This is usually followed by some sort of pronouncement that THIS PERSON CHARGED OF MINOR CRIMES FACES MORE JAIL TIME THAN YOU'D GET IF YOU BEAT A TODDLER TO DEATH WITH AN UNCONSCIOUS NUN WHILE RAPING A BLIND LIBRARIAN, or words to that effect.

The problem is this number — the sum of the maximum sentence for all the crimes charged in a federal case — usually bears almost no relation to the sentence the defendant actually faces.

Responsibility is not a zero-sum game. The Department of Justice, and its constituent U.S. Attorney's Offices, bear responsibility for repeating statutory maximums in their press releases bragging of indictments. Journalists and bloggers bear responsibility for repeating those numbers uncritically, especially if they repeat the "THAT'S MORE THAN YOU'D GET FOR DOUBLE-MURDER" meme.

Read the rest of the article, which explains in detail how sentencing actually works. White's article is written about a whale sushi case, so I provided a link to the applicable sentencing guideline for computer fraud cases.

Later

You edited your comment to make the point that NPR was reporting what the prosecutors actually said. I addressed that in my comment too, but, more importantly: no, that's not what they did. They wrote that Swartz faced a 35 year sentence. Not that prosecutors incorrectly and dishonestly claimed that he faced such a sentence --- or even that the provenance of that number was the prosecutors at all. Any reader could (and probably does) come away from that piece with the idea that Swartz actually faced a 35 year sentence. And of course, that's preposterous.

You need to atone for your actions regarding Aaron Swartz sir. When I first arrived at Hacker News I happened upon a thread where Aaron was asking for help from his compatriots, his fellow hackers. What he got was a sharp stick in the eye. The top voted comment was by a fellow who had been an active and helpful participant in this forum wherein he called Aaron out for not covering his own expenses for his defense. We now know that Aaron had already spent his fortune defending himself from a prosecutor out of control, Stephen Heymann, and was literally broke. This is apparently standard procedure for the Justice Department: threaten defendants with financial ruin and many years in jail to get a plea. As a result they boast a rate of 90% pleading guilty in federal cases. Thus effectively removing one of the most cherished protections of our civil liberties: trial by a jury of your peers. You sir, shut down every thread in that post in which someone even suggested that Aaron might be in trouble. The fellow who posted the top comment on that thread decided to abstain from taking part this discussion forum following Aaron's suicide. You, however, did not. You carried on commenting and defending the very behavior of the Justice Department which, along with your actions, lead to Aaron's death.

He committed suicide. You had as much of a part in his death as anyone else on the forum (i.e. no part at all).

You have no idea how depression works

Thank you for saying this. You are brave and beautiful.

Fuck you. I'm out.

Clearly, I've offended you. But I don't know why?

The tone of your comment is fawning and is easily confused with trolling, and "brave" is a word commonly used contrarily to indicate disdain for someone's actions. That, or you're actually just trolling.

I was about to donate $50 to Swartz's donation link until I read Tptacek comment about Swartz having had sold a startup before was hardly in a bad place to defend himself. I guess instead of thinking of donating I could have called him instead, maybe that might have helped.

EDIT: It was edw519, not tptacek: https://news.ycombinator.com/item?id=4529609

I don't think you should feel any more comfortable attributing malice to Ed than to me. In fact, you should feel less comfortable; Ed's more sincere and thoughtful than I am.

There is no malice attributed to Ed. It was a thoughtful comment that made a lot of sense at the time, enough to convince me to pursue a course of action that I otherwise wouldn't have taken. No fault doesn't mean no effect. If I was Ed and had his perspective I'm sure I'd have said the same comment. That comment did have a part in affecting other individuals (well, me at least) deciding actions they'd take, especially because Ed is a respected member of the community, who is sincere and thoughtful.

No fault != No effect.

The point is each and every action we take in this world changes it in some way. And it's simplistic to say no one in this community had any part in Swartz's death.

"You sir" need to spell his name right: Swartz.

Is that all you are objecting to? The spelling of Aaron's name? Fixed by the way. I fixed Heymann's spelling too.

Your scolding, scapegoating tone is pretty awful, too, but you'd have to delete the whole comment to correct it. No actions of any commenters here "lead to Aaron's death".

You call me a scold and accuse me of scapegoating. You claim that "no actions of any commenters here lead to Aaron's death" and imply that Aaron should have been able to survive the onslaught of financial ruin and the prospect of years in prison along with having his compatriots on Hacker News tell him to fuck off. Clearly, you have no compassion for Aaron's plight. But I do. You live in the same world with me and we are all in this together whether you like it or not.

You have no idea what you're talking about.

Okay then. Call me crazy. I tried to reach out to you across the chasm of differing ideologies. Is this all you've got? No comprende?

Don't play like "who, me? I'm just a naive seeker-of-common-ground!"

You entered the conversation waving a bloody shirt to slur real people, present here, as being responsible for the death of another real person, who was once present here. You couldn't even spell your adoptive martyr's name right, yet you're passing judgement, and want to assign blame to commenters – commenters! – for a death.

Swartz was a principled free-speech absolutist – see http://bits.are.notabug.com/ – so you do him no honor when you suggest commenters owe penance, or silence, for expressing certain opinions.

I second this. It's no secret that I often find Thomas's writing and tone to be reprehensible. But his comments, then and now, with regard to Aaron are beyond the pale.

The only thing "preposterous"--to use Thomas's word--is that the debate here is a mostly semantic one about how much jail time Aaron "faced," rather than a substantive one about why he was facing any jail time at all. That's the debate that should be taking place, and it's one worth having.

It is absolutely true that Aaron was treated incredibly poorly by this community when he was most in need. See https://news.ycombinator.com/item?id=5056279. Though much has since been deleted, I saw it happen, and I've been on the receiving end of similar treatment myself.

I'm planning to revisit this topic later. But for now, shame on those whose cynicism knows no bounds. And shame on Y Combinator for allowing a useful tool for discussion to devolve so clearly into a toxic mess.

Thank you. You give me hope.

The deleted comments on that thread are about 'edw519, not Aaron Swartz. The thread you've linked to to show Aaron's mistreatment happened after his suicide and thus can't illustrate any treatment of Aaron whatsoever. So I have to ask what you believe you "saw happen" there.

As he states, the numbers supplied in press releases are based on a calculation which is totally disjoint from the one actually applied during a trial and sentencing.