5 ms·

I don't find the "other top HN post right now" regarding this, but as I understand it [paraphrasing], nobody told him "hey, you'll probably get 6 months", they

by miahi 14y ago

I don't find the "other top HN post right now" regarding this, but as I understand it [paraphrasing], nobody told him "hey, you'll probably get 6 months", they only told him "hmm, you can reduce it to 25 years. maybe. if you beg."

res0nat0r 14y ago
http://betabeat.com/2013/01/tom-dolan-defends-carmen-ortiz-aaron-swartz-twitter/ http://betabeat.com/2013/01/tom-dolan-defends-carmen-ortiz-a...
- jlgreco 14y ago
  Yes, we are all aware of the plea bargain. There have been several discussions about it already; I think most of us are disturbed by the implications of the practice.
- waterlesscloud 14y ago
  The prosecutor's husband is attacking people online for stating the government's own position? The 35 year figure came from the prosecutors. If they didn't want it circulated, perhaps they shouldn't have trumpeted it to the media. Right here, in their own press release. http://www.wired.com/images_blogs/threatlevel/2011/07/Swartz-Aaron-PR.pdf http://www.wired.com/images_blogs/threatlevel/2011/07/Swartz... "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." If they're happy to use the figure when seeking media attention, they have to accept its use when they're in trouble.
  - res0nat0r 14y ago
    Except he wasn't facing 35 years in prison...If he wanted to take the charge he could have, but he was facing 6 months if he wanted to look out for his best interests. The comments here keep making it seem that he was going to realistically do 30+ years in prison which is obviously incorrect.
    - zzzeek 14y ago
      he wasn't accepting admitting to being a felon so it was very likely he was in fact going to get 35 years in prison for a TOS violation. Also, the practice of "admit you're guilty, else go to prison for (life|35 years)" is a common practice of totalitarian states used to crush dissenters and activists.
      - slapshot 14y ago
        A guilty verdict from a jury is not an automatic maximum sentence. The mostly-mandatory Federal Sentencing Guidelines would have called for an actual sentence of 4-10 months in this case. In the federal system, broad classes of crimes ("murder", "robbery", "wire fraud") have been assigned maximum sentences. For example, under no conditions can a sentence for wire fraud exceed 20 years (you get to the theoretical max of 35 in this case by adding the other charges, but they in the case everything would likely be folded into wire fraud on sentencing because all of the charges were based on the same conduct). But most defendants convicted of wire fraud (even by a jury) don't serve 20 years. In fact, many first-time offenders don't serve anywhere close to that -- it's usually under a year. Instead, the Federal Sentencing Guidelines [1] are a mostly-mandatory (there are constitutional reasons why judges are allowed to depart from the Guidelines, but it's rare and requires justification) system to calculate a range that a defendant will actually serve following a jury conviction. Here, wire fraud is a "level 7" offense.[2] That offense level can be adjusted upward or downward based on other facts of the crime (e.g., was stock fraud involved? add 4). Assuming that Orrin Kerr was right and the total loss was $5,000 or less, there would be no adjustments and so Aaron's offense level would be 7. Take that to the sentencing chart[3] and you can calculate that if Aaron had no priors he would be in criminal history category I and have an offense level of 7, which would be a sentence of 4-10 months. That's unpleasant, but it's a far cry from being "likely ... to get 35 years." In fact, if you look at the sentencing chart, the only way for a first-time offender to have a Guidelines range of 35 years is to be above an offense level of 40. It takes serious work to get there: even a wire fraud of more than $300,000,000 in damages won't get you to that offense level. To get an offense level of 40, you're looking at first degree murder. Familiarize yourself with the sentencing guidelines and you can see what was actually likely. A judge _could_ depart from the guidelines, but sentences significantly above the guidelines for a first-time offender are all but guaranteed to be struck down on appeal. To take another example of the difference between maximum and actual sentences: the maximum sentence for murder in many states is death, but not everyone convicted of murder gets the death penalty. [1] http://www.ussc.gov/Guidelines/2012_Guidelines/ http://www.ussc.gov/Guidelines/2012_Guidelines/ [2] http://www.ussc.gov/Guidelines/2011_Guidelines/Manual_HTML/2b1_1.htm http://www.ussc.gov/Guidelines/2011_Guidelines/Manual_HTML/2... [3] http://www.ussc.gov/Guidelines/2012_Guidelines/Manual_HTML/5a_SenTab.htm http://www.ussc.gov/Guidelines/2012_Guidelines/Manual_HTML/5... Edit: Incidentally, the prosecutor is constitutionally _required_ to inform defendant of the full statutory maximum sentence, even if it's not realistic in a particular case. Failing to do so can be grounds for reversal of a plea or conviction. That doesn't mean the prosecutor has to tell the media, but he/she must tell the defendant.

by miahi 14y ago

res0nat0r 14y ago

http://betabeat.com/2013/01/tom-dolan-defends-carmen-ortiz-aaron-swartz-twitter/ http://betabeat.com/2013/01/tom-dolan-defends-carmen-ortiz-a...

jlgreco 14y ago
Yes, we are all aware of the plea bargain. There have been several discussions about it already; I think most of us are disturbed by the implications of the practice.
waterlesscloud 14y ago
The prosecutor's husband is attacking people online for stating the government's own position? The 35 year figure came from the prosecutors. If they didn't want it circulated, perhaps they shouldn't have trumpeted it to the media. Right here, in their own press release. http://www.wired.com/images_blogs/threatlevel/2011/07/Swartz-Aaron-PR.pdf http://www.wired.com/images_blogs/threatlevel/2011/07/Swartz... "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." If they're happy to use the figure when seeking media attention, they have to accept its use when they're in trouble.
- res0nat0r 14y ago
  Except he wasn't facing 35 years in prison...If he wanted to take the charge he could have, but he was facing 6 months if he wanted to look out for his best interests. The comments here keep making it seem that he was going to realistically do 30+ years in prison which is obviously incorrect.
  - zzzeek 14y ago
    he wasn't accepting admitting to being a felon so it was very likely he was in fact going to get 35 years in prison for a TOS violation. Also, the practice of "admit you're guilty, else go to prison for (life|35 years)" is a common practice of totalitarian states used to crush dissenters and activists.
    - slapshot 14y ago
      A guilty verdict from a jury is not an automatic maximum sentence. The mostly-mandatory Federal Sentencing Guidelines would have called for an actual sentence of 4-10 months in this case. In the federal system, broad classes of crimes ("murder", "robbery", "wire fraud") have been assigned maximum sentences. For example, under no conditions can a sentence for wire fraud exceed 20 years (you get to the theoretical max of 35 in this case by adding the other charges, but they in the case everything would likely be folded into wire fraud on sentencing because all of the charges were based on the same conduct). But most defendants convicted of wire fraud (even by a jury) don't serve 20 years. In fact, many first-time offenders don't serve anywhere close to that -- it's usually under a year. Instead, the Federal Sentencing Guidelines [1] are a mostly-mandatory (there are constitutional reasons why judges are allowed to depart from the Guidelines, but it's rare and requires justification) system to calculate a range that a defendant will actually serve following a jury conviction. Here, wire fraud is a "level 7" offense.[2] That offense level can be adjusted upward or downward based on other facts of the crime (e.g., was stock fraud involved? add 4). Assuming that Orrin Kerr was right and the total loss was $5,000 or less, there would be no adjustments and so Aaron's offense level would be 7. Take that to the sentencing chart[3] and you can calculate that if Aaron had no priors he would be in criminal history category I and have an offense level of 7, which would be a sentence of 4-10 months. That's unpleasant, but it's a far cry from being "likely ... to get 35 years." In fact, if you look at the sentencing chart, the only way for a first-time offender to have a Guidelines range of 35 years is to be above an offense level of 40. It takes serious work to get there: even a wire fraud of more than $300,000,000 in damages won't get you to that offense level. To get an offense level of 40, you're looking at first degree murder. Familiarize yourself with the sentencing guidelines and you can see what was actually likely. A judge _could_ depart from the guidelines, but sentences significantly above the guidelines for a first-time offender are all but guaranteed to be struck down on appeal. To take another example of the difference between maximum and actual sentences: the maximum sentence for murder in many states is death, but not everyone convicted of murder gets the death penalty. [1] http://www.ussc.gov/Guidelines/2012_Guidelines/ http://www.ussc.gov/Guidelines/2012_Guidelines/ [2] http://www.ussc.gov/Guidelines/2011_Guidelines/Manual_HTML/2b1_1.htm http://www.ussc.gov/Guidelines/2011_Guidelines/Manual_HTML/2... [3] http://www.ussc.gov/Guidelines/2012_Guidelines/Manual_HTML/5a_SenTab.htm http://www.ussc.gov/Guidelines/2012_Guidelines/Manual_HTML/5... Edit: Incidentally, the prosecutor is constitutionally _required_ to inform defendant of the full statutory maximum sentence, even if it's not realistic in a particular case. Failing to do so can be grounds for reversal of a plea or conviction. That doesn't mean the prosecutor has to tell the media, but he/she must tell the defendant.