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> The 35 year number is simply a lie Are you saying the DOJ is lying or that the fact that Aaron Swartz was told he could be facing 35 years in jail? This is

by baldfat 11y ago

> The 35 year number is simply a lie Are you saying the DOJ is lying or that the fact that Aaron Swartz was told he could be facing 35 years in jail? This is so odd. I feel like people are down voting me to defend the DOJ's handling of Aaron Swartz?

tptacek 11y ago
The DOJ is lying, and lies routinely about this. A link to Popehat, the blog of a former federal white-collar crimes prosecutor who writes about civil liberties, was provided upthread and explains it in detail. There is no substance whatsoever to the "35 years" figure. The reality is that we don't really have to ask what Swartz was thinking, because after his death, his lawyer wrote up his predicament. The trial would have been ruinously expensive, but there was a very good chance that even if he was found guilty, he would serve no custodial sentence. You can back that up by finding the federal sentencing guidelines, lookup up the CFAA guidelines, and applying them to Swartz, who had no previous criminal record, caused no significant damage in his offense, and sought no profit from his crimes (all factors considered by the guidelines). It's very hard to shoot down an urban myth as virulent as "Swartz faced 35 years in prison", though. Especially when so many people want it to be true.
- baldfat 11y ago
  I agree with you except for one thing. > It's very hard to shoot down an urban myth as virulent as "Swartz faced 35 years in prison" Because that is in fact what the DOJ sent out to the press in this document stating the non-mythical number 35. Trying to understand why 35 years is a myth the public continues to hold on to: Pragmatically you are saying that could not happen but the empirical evidence of DOJ communication to the public is 35 years.
  - tptacek 11y ago
    I don't really care who's to blame. I'm certainly not defending the DOJ. A very thorough and compelling study of mass incarceration published earlier this year suggests that prosecutorial overzealousness probably accounts for more of our prison population than any other factor. But the "35 year sentence" claim has nothing to do with Swartz's predicament. He had excellent legal representation, both formally (he had a series of well-qualified criminal defense attorneys) and informally (he had a support system compromised of several of the most respected legal scholars in the country). Every one of them would have told him that he could, and should, ignore the "35 year" figure from the DOJ's press release --- the DOJ writes a similar press release for every headline prosecution, and in each case applies the same absurd heuristic of adding up the maximum possible sentence for all counts, ignoring the sentencing guidelines and offense grouping rules. The 35-year sentence is also mooted by Heymann's own initial negotiation with Swartz, where he threatened Swartz with a 7-year sentence. 7 years was his ambit claim; it was the worst possible case Heymann could generate, and a fabulously unrealistic one given the CFAA sentencing guidelines.

by baldfat 11y ago

tptacek 11y ago

The DOJ is lying, and lies routinely about this. A link to Popehat, the blog of a former federal white-collar crimes prosecutor who writes about civil liberties, was provided upthread and explains it in detail. There is no substance whatsoever to the "35 years" figure. The reality is that we don't really have to ask what Swartz was thinking, because after his death, his lawyer wrote up his predicament. The trial would have been ruinously expensive, but there was a very good chance that even if he was found guilty, he would serve no custodial sentence. You can back that up by finding the federal sentencing guidelines, lookup up the CFAA guidelines, and applying them to Swartz, who had no previous criminal record, caused no significant damage in his offense, and sought no profit from his crimes (all factors considered by the guidelines). It's very hard to shoot down an urban myth as virulent as "Swartz faced 35 years in prison", though. Especially when so many people want it to be true.

baldfat 11y ago
I agree with you except for one thing. > It's very hard to shoot down an urban myth as virulent as "Swartz faced 35 years in prison" Because that is in fact what the DOJ sent out to the press in this document stating the non-mythical number 35. Trying to understand why 35 years is a myth the public continues to hold on to: Pragmatically you are saying that could not happen but the empirical evidence of DOJ communication to the public is 35 years.
- tptacek 11y ago
  I don't really care who's to blame. I'm certainly not defending the DOJ. A very thorough and compelling study of mass incarceration published earlier this year suggests that prosecutorial overzealousness probably accounts for more of our prison population than any other factor. But the "35 year sentence" claim has nothing to do with Swartz's predicament. He had excellent legal representation, both formally (he had a series of well-qualified criminal defense attorneys) and informally (he had a support system compromised of several of the most respected legal scholars in the country). Every one of them would have told him that he could, and should, ignore the "35 year" figure from the DOJ's press release --- the DOJ writes a similar press release for every headline prosecution, and in each case applies the same absurd heuristic of adding up the maximum possible sentence for all counts, ignoring the sentencing guidelines and offense grouping rules. The 35-year sentence is also mooted by Heymann's own initial negotiation with Swartz, where he threatened Swartz with a 7-year sentence. 7 years was his ambit claim; it was the worst possible case Heymann could generate, and a fabulously unrealistic one given the CFAA sentencing guidelines.