Comment by declan | Hacker News Reader

Comment by declan | Hacker News Reader

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Welcome to the wonderful world of federal overcriminalization.

Aaron Swartz faced 13 federal felonies (the Feds upped it from 4 to 13 at some point) and a possible maximum of 50+ years in prison: https://www.techdirt.com/articles/20120917/17393320412/us-go...

Then there's the No Electronic Theft Act, which Clinton signed into law. It made not-for-profit copyright infringement -- think sharing on P2P networks -- a federal felony. Previously it was a civil matter.

Now <gvb> is correct that there are sentencing guidelines that will make the likely sentence less. But even the outside possibility of a young man or woman leaving prison when they're 70-80+ years old for a non-violent crime is remarkable. (Note I'm not defending Paul Ceglia, who may well have committed fraud and should pay the price if convicted; I'm merely saying that the punishment should correspond to the gravity of the offense.)

These are DOJ stats for the year 2000, but it gives you an idea of the range for violent felonies: "The mean prison sentence for murder and nonnegligent manslaughter was nearly 20 years and 8 months." http://www.bjs.gov/content/pub/ascii/Fssc00.txt

Harvey Silverglate's book "Three Felonies a Day" is an excellent resource, and I separately wrote about the overcriminalization of federal law here: http://www.cnet.com/news/from-wargames-to-aaron-swartz-how-u...

Declan, you know you're oversimplifying the Swartz case. We've discussed this before. You are technically correct that the gap between "likely" and "possible" is decades, but that outlandish "possible" is, well, outlandish.

The difference between the 7 months Swartz was threatened with by prosecutors and "50 years" is the question of whether multiple CFAA counts for the same crime "group". We know the answer to this: they do. Defendants convicted on multiple counts of CFAA offenses for the same underlying criminal act serve a sentence for a single count (the most severe). A judge could override this, but the onus should be on the "50 years" people to cite a CFAA case in which a judge has ever manipulated CFAA grouping rules to amp up a sentence. The argument seems to suggest that a judge might be so upset by Swartz that they'd throw out a chunk of the sentencing guidelines.

Swartz's own attorney wrote, after his death, that a conviction on all counts might still leave Swartz at a sentencing level that allowed probation: his crime was non-remunerative, the statute he was charged on is oriented heavily towards financial crimes, his primary victim was unmotivated, and he had no criminal record.

When Swartz's sentence is brought up on a message board, what's really being discussed is the nature of judicial discretion versus the federal sentencing guidelines.

That's unfortunate. Leaving aside the fact that any custodial sentence for Swartz would have miscarried justice, and beyond the trauma of enduring a federal criminal prosecution, the likely guideline sentence for Swartz's charge (if you stipulate that he was guilty, which you can't do here) is not prima facie insane.

But other CFAA sentences are totally insane. When you handwave around Swartz's sentence, you make it easy for people who understand (at least a bit about) federal sentencing to laugh off other CFAA sentences. But there have been recent cases in which the CFAA's sentencing process is much more clearly unjust.

<tptacek>: Yes, we've been around this circle before, and I don't think we're going to change each other's minds.

As for Aaron Swartz's attorneys, they would have jumped at the chance for probation. They explicitly offered it as a deal to the Feds, who rejected it. Prosecutors held out for a felony plea and prison time: http://www.thedailybeast.com/articles/2013/01/15/aaron-swart...

So because of the combination of federal overcriminalization (thank you, Congress) and prosecutorial overzealousness (thank you, Carmen Ortiz), this is what Aaron had to look forward to:

If he plead guilty to a felony, he could have been sentenced to as many as 5 years... Each additional conviction would increase the cap by 5 years, though the guidelines calculation would remain the same. No wonder he didn't want to plead to 13 felonies. Also, Aaron would have had to swear under oath that he committed a crime, something he did not actually believe. http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-l...

Did you read her whole post? The hypothetical you're referring to is preceded by a paragraph that ends with "But Aaron could easily have come out to over a year in his guideline calculation" in the case where he went to trial and was found guilty.

I think sentences in the U.S. are too long. That said, "Three Felonies a Day" is a shitty book with shitty examples.

Take these examples on the website: http://www.threefeloniesaday.com/Youtoo/tabid/86/Default.asp.... It's presented in the book as a small business owner convicted for selling undersized lobster tails in plastic packaging in violation of a new-longer valid Honduran law.

But in reality she was convicted by a jury for her role in a conspiracy to import $17 million in undersized lobster tails: http://www.publicaffairs.noaa.gov/releases2004/mar04/noaa04-.... There is a good debunking of it here: http://www.eenews.net/stories/1059964426.

Well, the mere fact that a jury convicted someone of violating Federal Law X doesn't mean that Federal Law X is a good, just, or sensible law. Aaron Swartz may well have been convicted of violating Federal Law Y, but that doesn't justify his prosecution (or the existence of Federal Law Y).

Here's a better description of the case:

Seafood dealers were prosecuted and convicted for importing lobster tails from Honduras because they allegedly violated an obscure Honduran regulation requiring that frozen seafood be shipped in cardboard boxes instead of clear plastic bags, and because about three percent of the 70,000 pound shipment consisted of Caribbean spiny lobster tails that were less than 5.5 inches in length, which allegedly violated another Honduran regulation on size limit...

Because the seafood was shipped in clear plastic bags instead of opaque boxes, they were also charged with "smuggling," even though the shipments regularly went through Customs inspections and testing by the Food and Drug Administration at the port near Mobile, Alabama...

There was just one problem with the Justice Department's case: the Honduran regulations that served as the predicate for the charges were later declared to be null and void, repealed, and otherwise of no legal effect by Honduran courts, the Honduran Attorney General, and other high level Honduran officials, including the Honduran Human Rights Commission. The Honduran government took the extraordinary step of filing a brief in the court of appeals, and again in the Supreme Court, providing the official views of the country that the regulations were invalid.

Source: http://www.wlf.org/upload/022404PK.pdf

It sounds like you owe Harvey, who wrote Three Felonies a Day, an apology (he was EFF's first lawyer, I recall, and I wouldn't be surprised if he reads HN occasionally). But I have no brief to defend the book or talk at length about lobster tails; my point was overcriminalization is real.

This comment is unresponsive to its parent, which directly addresses the summary of the case you've provided.

We know that there are people who believe someone was given an 8 year sentence for shipping a small amount of lobster tails in violation of Honduran law and for storing them in bags and not boxes. That's the headline of Silverglate's argument.

What wasn't clear was that the offenders had hauled fifteen million dollars of illegal lobster tails, deliberately selecting out-of-the-way ports with under-staffed inspectors, using bags (unlawfully) to conceal the amount of their take that violated regs, as part of an elaborate scheme that involved processing companies in Honduras and, at one point, a smuggling route through Canada.

I think one of the problem in the Swartz case is that the sentences from multiple felonies add up; otherwise there was no way to arrive at such a ridiculus penalty for a copyright violation. In many countries this is not possible, eg. in Austria you will get no more than the maximum sentence even if you are convicted of multiple felonies.

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