6 ms·

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 fel

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

jdong 12y ago
The DoJ isn't lying, the public just doesn't understand what these numbers mean. That's not the DoJs fault, but the publics.
- mkohlmyr 12y ago
  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.
  - jdong 12y ago
    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.
    - vishnugupta 12y ago
      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 http://en.wikipedia.org/wiki/Loss_aversion
      - tptacek 12y ago
        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.
        vishnugupta 12y ago
        > 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.
        danielweber 12y ago
        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.
pdabbadabba 12y ago
> 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.
- tptacek 12y ago
  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.
  - pdabbadabba 12y ago
    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)

jdong 12y ago

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

mkohlmyr 12y ago
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.
- jdong 12y ago
  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.
  - vishnugupta 12y ago
    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 http://en.wikipedia.org/wiki/Loss_aversion
    - tptacek 12y ago
      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.
      - vishnugupta 12y ago
        > 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.
        danielweber 12y ago
        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.

pdabbadabba 12y ago

> 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.

tptacek 12y ago
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.
- pdabbadabba 12y ago
  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)