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"What punishment was the minimum necessary to deter Swartz from continuing to try to use unlawful means to achieve his reform goals?" Let's say no punishment w
by gnosis 14y ago
"What punishment was the minimum necessary to deter Swartz from continuing to try to use unlawful means to achieve his reform goals?"
Let's say no punishment would deter Swartz. Would that justify a sentence of life in prison?
- pdonis 14y agoKerr says later on: "decades in jail would have been extreme overkill". So apparently he was willing to at least set some limits without even knowing the answer to his question. A little earlier he says: "I’ll defer here to the people who knew Swartz best, with whatever they think the right answer is. Would probation have been enough? A month of home confinement? Jail time?" Which also sets some bounds on what he thought was reasonable. So I don't know if Kerr really meant for his question to be taken at face value. OTOH, he does seem to consider it important that the punishment be sufficient to cause the person to switch from illegal to legal means for achieving his goals. So he doesn't seem fully consistent on this point.
- btilly 14y agoI don't see him as inconsistent. I just think that he didn't state his full position in a single place. My understanding is that his full position follows from two principles: 1. The only point of punishing Aaron is to deter him, so there is no reason to punish him more than what would deter him. 2. There is a reasonable limit to what is a fair punishment for Aaron's actions, by no means should Aaron be punished more than that. The result is that the appropriate punishment is the minimum of the two. Given that Aaron could have been deterred by punishment that is far less than #2 provides, the limiting consideration in his case is #1. But even for a much more difficult to deter person, by no means is decades acceptable for #2.
- pdonis 14y agoYou missed a principle: 3. The punishment must be enough to deter him--more precisely, to ensure that he switches from illegal to legal means for achieving his goals. The whole point is that #3 might well be incompatible with #1 and #2, if Aaron was sufficiently committed to his goals and legal means did not offer enough of a possibility of achieving them (which is what appeared to be the case). Obviously if you leave out #3 there's no problem; but Kerr specifically included #3 and talked like he thought it was important.
- btilly 14y agoI did not miss that. The #3 that you discuss follows as a logical consequence of #1 and #2 if #2 exceeds #1. Which it did in this case. But the statement that #1 should be the principle under which Aaron should be sentenced does NOT logically imply that it is in all cases that right applicable principle.
- pdonis 14y agoHuh? Either I'm missing something or your logic is in error. To briefly restate: let P = the amount of punishment imposed; let D = the minimum amount of punishment sufficient to deter; let R = the "reasonable limit" on the amount of punishment. #1 says: not P > D. #2 says: P <= R. #3 says: P >= D. There are no logical implications between any pair of the above. #1 and #3 combined force P = D. But that is incompatible with #2 if D > R. To put it back into English: if the only amount of punishment that will deter is greater than the "reasonable limit", there is no way to satisfy all the principles.
- btilly 14y ago#1 actually is The only point of punishing Aaron is to deter him which means both that there is no point in punishing Aaron beyond the level of deterrence, and that as long as increased punishment increases deterrence, there is a point in increasing punishment. The point being that deterrence is not a binary yes/no. Even if tossing Aaron in jail will not stop him, tossing him in jail for 6 years delays his next offense more than tossing him in jail for 5 years, so that would be an argument for increased punishment. Therefore #1 as I meant it is both an argument for an absolute upper limit on punishment, AND an argument for as much punishment as possible as long as you are within that limit. Therefore if #2 limits punishment below the absolute maximum from #1, you can still satisfy all of the principles at once.
- pdonis 14y agodeterrence is not a binary yes/no That's true, but it doesn't change the argument. Just change D to the minimum punishment that will provide an acceptable level of deterrence. The same logic goes through. (Technically, yes, you now can allow P >= D instead of forcing P = D, but that doesn't matter if D > R.) Therefore if #2 limits punishment below the absolute maximum from #1, you can still satisfy all of the principles at once. Not if #2 limits punishment below the minimum that will provide a acceptable level of deterrence. See above.
- malandrew 14y agoGiven that he, like many of us, lived his entire life on the internet, simply taking away all computer and internet access for 12 months should be enough to deter him. During those 12 months, if he violates that probationary periods he could be automatically hit with 6 months of jail time. For many of us, the possibility of being deprived the tool that gives most of us the power we have should be enough to deter.
- gruseom 14y agoI have the impression that he liked books as much as computers.
- pseingatl 14y agoYou're forgetting supervised release. This is mandatory even after a short custodial sentence and could be for a period of up to three years. During this time he could not have computer access; this is a standard condition. It was a violation of this supervised release condition that sent the Egyptian national who made a scandalous film about Islam back to prison.