3 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 f

> 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)
  - pdabbadabba 12y ago
    I think I've determined that you're talking about offense grouping under USSG s. 3D1.2. [1] I had thought you were talking about something different: whether offenses are to be charged concurrently or consecutively. It is my strong suspicion that the 3D1.2 grouping rules are also only a recommendation (there is certainly no doubt that, generally speaking, the guidelines are not legally binding -- a district court need only consider them and the sentencing factors they articulate), but I have not found a definitive answer yet. But this distinction -- discretion to disregard 3D1.2 v. discretion to disregard 5G1.2 [2] -- is largely academic. Section 3 of the guidelines deals with determination of the "total punishment." Section 5 deals with how to actually implement that punishment -- that is, how to use the traditional "one sentence per count" approach to implement the guidelines' "total punishment" approach. When there are multiple counts/offenses of conviction, the district court groups the offenses, and determines a total punishment for each group (that's 3D1.2). Then it implements that sentence by imposing it for each count (note: not "group") of conviction, to run concurrently. (5G1.2) But, under Quinones (in the First Circuit) it appears clear that a district court, after adequate explanation, may depart from the 5G1.2 methodology and impose the "total punishments" consecutively instead of concurrently. So, even if grouping under 3D1.2 remains mandatory (which I doubt), it would seem that the court would still be free to depart from the implementation methodology provided in 5G1.2 to impose that "total punishment" more than once, consecutively. Here that means that even if the district court grouped all five counts together and arrived at a total punishment of seven years, under 3D1.2, it could still impose that sentence five times, consecutively, under 5G1.2. It's worth emphasizing that it would be quite unusual for a judge to do this, and she would have to quite clearly articulate her reasons for doing so in order for the sentence to not be vacated on appeal. This, I suspect, is why Popehat, for example, describes the operation of the guidelines as though it were mandatory -- typically an attorney can take for granted the fact that a judge will follow them or, at any rate, not depart too wildly. If you are trying to make a realistic prediction/determination of a defendant's sentence, the guidelines are where you look. But it also remains true that a district court may, with adequate justification, disregard the guidelines and have the sentence affirmed on appeal -- this includes the possibility here, however remote, of five statutory maximum sentences all to run consecutively. [1] - http://www.ussc.gov/guidelines-manual/2011/2011-3d12 http://www.ussc.gov/guidelines-manual/2011/2011-3d12 [2] - http://www.ussc.gov/guidelines-manual/2011/2011-5g12 http://www.ussc.gov/guidelines-manual/2011/2011-5g12
scintill76 12y ago
Yes, Swartz likely knew it was nowhere near as bad as 35 years. Still, you are not addressing what a felony conviction would mean. After spending millions (according to his father on the documentary) on defense, say he is convicted, sentenced to a best case of some community service, probation, and no jail time. He's now spent all his money, his name is sullied in the public mind, he may be barred from voting, he may be restricted by the terms of probation, he may have difficulty finding a job and housing[0], and hopes of a political career are pretty much demolished. On the documentary, Quinn Norton says, "He just didn't believe that he could continue in his life, with a felony, you know. He said to me one day-- We were walking by the White House, and he said to me, 'They don't let felons work there.' ... He really wanted that to be his life." (around 52:00) So, you can say "he should have known what he was getting into" if you want, but "he didn't face much prison time" really rings hollow to me. The prison time was probably one of the last concerns on his mind, especially if he was "only" expecting a few months of prison. It would have been followed by several years of parole/probation and the rest of life as a felon. And if a 35-year sentence was actually possible, then yes, the DoJ wasn't lying, but it only reinforces the arguments of everyone talking about how disgusting is the threat of 35 years for downloading articles. [0] https://en.wikipedia.org/wiki/Felony#United_States https://en.wikipedia.org/wiki/Felony#United_States
- pdabbadabba 12y ago
  You wrote this: >As long as the DOJ are allowed to essentially lie to the public like this, why shouldn't it be fair to factor [the purported 35-year maximum sentence] 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. That's what I am responding to. Beyond that, it sounds like we're not disagreeing much, except for this small point: it is true, as you say, that being convicted of any felony at all is a huge deal. And probably even more so for Aaron Swartz. But that doesn't mean that the difference between a six-month sentence and a 35-year sentence is not also incredibly significant! I sympathize with those who think that this debate over the length of Aaron's potential and likely sentences misses the point. But I think that is just another criticism that ought to be leveled at media outlets and activists who continue to repeat the 35-year number without explanation or qualification. Those people repeat the 35-year figure precisely because they do regard it as significant and, often, reiterate it as a way of inflaming people's passions. I think this is a dishonest way of framing and spurring the debate. I, like you it seems, think that we would be better off reevaluating what is criminalized in the first place than flailing about, speculating about how long Aaron's sentence would have been, what the government "threatened him" with, etc. In short: I take issue with the 35-year number not because I think that, in reality, the sentence was so short that Aaron had nothing to worry about, but because it is a misleading (because it is misinformed) starting point for any meaningful discussion.

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)
- pdabbadabba 12y ago
  I think I've determined that you're talking about offense grouping under USSG s. 3D1.2. [1] I had thought you were talking about something different: whether offenses are to be charged concurrently or consecutively. It is my strong suspicion that the 3D1.2 grouping rules are also only a recommendation (there is certainly no doubt that, generally speaking, the guidelines are not legally binding -- a district court need only consider them and the sentencing factors they articulate), but I have not found a definitive answer yet. But this distinction -- discretion to disregard 3D1.2 v. discretion to disregard 5G1.2 [2] -- is largely academic. Section 3 of the guidelines deals with determination of the "total punishment." Section 5 deals with how to actually implement that punishment -- that is, how to use the traditional "one sentence per count" approach to implement the guidelines' "total punishment" approach. When there are multiple counts/offenses of conviction, the district court groups the offenses, and determines a total punishment for each group (that's 3D1.2). Then it implements that sentence by imposing it for each count (note: not "group") of conviction, to run concurrently. (5G1.2) But, under Quinones (in the First Circuit) it appears clear that a district court, after adequate explanation, may depart from the 5G1.2 methodology and impose the "total punishments" consecutively instead of concurrently. So, even if grouping under 3D1.2 remains mandatory (which I doubt), it would seem that the court would still be free to depart from the implementation methodology provided in 5G1.2 to impose that "total punishment" more than once, consecutively. Here that means that even if the district court grouped all five counts together and arrived at a total punishment of seven years, under 3D1.2, it could still impose that sentence five times, consecutively, under 5G1.2. It's worth emphasizing that it would be quite unusual for a judge to do this, and she would have to quite clearly articulate her reasons for doing so in order for the sentence to not be vacated on appeal. This, I suspect, is why Popehat, for example, describes the operation of the guidelines as though it were mandatory -- typically an attorney can take for granted the fact that a judge will follow them or, at any rate, not depart too wildly. If you are trying to make a realistic prediction/determination of a defendant's sentence, the guidelines are where you look. But it also remains true that a district court may, with adequate justification, disregard the guidelines and have the sentence affirmed on appeal -- this includes the possibility here, however remote, of five statutory maximum sentences all to run consecutively. [1] - http://www.ussc.gov/guidelines-manual/2011/2011-3d12 http://www.ussc.gov/guidelines-manual/2011/2011-3d12 [2] - http://www.ussc.gov/guidelines-manual/2011/2011-5g12 http://www.ussc.gov/guidelines-manual/2011/2011-5g12

scintill76 12y ago

Yes, Swartz likely knew it was nowhere near as bad as 35 years. Still, you are not addressing what a felony conviction would mean. After spending millions (according to his father on the documentary) on defense, say he is convicted, sentenced to a best case of some community service, probation, and no jail time. He's now spent all his money, his name is sullied in the public mind, he may be barred from voting, he may be restricted by the terms of probation, he may have difficulty finding a job and housing[0], and hopes of a political career are pretty much demolished. On the documentary, Quinn Norton says, "He just didn't believe that he could continue in his life, with a felony, you know. He said to me one day-- We were walking by the White House, and he said to me, 'They don't let felons work there.' ... He really wanted that to be his life." (around 52:00) So, you can say "he should have known what he was getting into" if you want, but "he didn't face much prison time" really rings hollow to me. The prison time was probably one of the last concerns on his mind, especially if he was "only" expecting a few months of prison. It would have been followed by several years of parole/probation and the rest of life as a felon. And if a 35-year sentence was actually possible, then yes, the DoJ wasn't lying, but it only reinforces the arguments of everyone talking about how disgusting is the threat of 35 years for downloading articles. [0] https://en.wikipedia.org/wiki/Felony#United_States https://en.wikipedia.org/wiki/Felony#United_States

pdabbadabba 12y ago
You wrote this: >As long as the DOJ are allowed to essentially lie to the public like this, why shouldn't it be fair to factor [the purported 35-year maximum sentence] 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. That's what I am responding to. Beyond that, it sounds like we're not disagreeing much, except for this small point: it is true, as you say, that being convicted of any felony at all is a huge deal. And probably even more so for Aaron Swartz. But that doesn't mean that the difference between a six-month sentence and a 35-year sentence is not also incredibly significant! I sympathize with those who think that this debate over the length of Aaron's potential and likely sentences misses the point. But I think that is just another criticism that ought to be leveled at media outlets and activists who continue to repeat the 35-year number without explanation or qualification. Those people repeat the 35-year figure precisely because they do regard it as significant and, often, reiterate it as a way of inflaming people's passions. I think this is a dishonest way of framing and spurring the debate. I, like you it seems, think that we would be better off reevaluating what is criminalized in the first place than flailing about, speculating about how long Aaron's sentence would have been, what the government "threatened him" with, etc. In short: I take issue with the 35-year number not because I think that, in reality, the sentence was so short that Aaron had nothing to worry about, but because it is a misleading (because it is misinformed) starting point for any meaningful discussion.