[tzs]

> Losing your job versus facing decades in prison are orders of magnitude apart

Swartz was not facing decades in prison. He faced charges whose maximum sentences added together reached several decades, but it was all but impossible to actually receive that kind of sentence.

First, the Federal sentencing guidelines scale the sentence based on the severity of the particular instance of the crime. Swartz's was low on the scale for the various crimes he was charged with.

Second, some crimes are grouped. You can be charged with several crimes from a group, but you are only sentenced for the one in the group with the longest sentence. I believe this was the case with the Swartz charges.

PS: if PG ever decides to monetize HN, and interesting approach would be a "show me who down voted" button that costs $1 to use. I'd pay $1 to see who down voted this.

[analog]

Your beliefs on the length of Swartz's possible jail term are contradicted by the US Department of Justice themselves.

"AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. 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." [1]

[1] http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR....

[tptacek]

The DOJ lied in the press release. They have a habit of doing that. There was no possibility that Swartz would face 35 years in prison. You can be upset about that, and that's reasonable, but you cannot synthesize from that upset the idea that Swartz actually could have spent 35 years in prison.

The consensus among former prosecutors and defense attorneys writing about this case is that if Swartz had been convicted on all counts, he might have faced as many as 2 years, but that he also might have avoided a custodial sentence even if he was convicted.

[btilly]

The DOJ did not lie. They just made a correct yet misleading statement.

Incidentally according to Aaron's lawyer, the prosecutors were going to be trying to convince a judge of a lot more than 2 years. Whether they would have succeeded in that is an unknown question.

[tptacek]

Yes, the nightmare scenario they scared Swartz with was 6-7 years. Which clearly does qualify as a nightmare. Aaron's last lawyer did not believe that was a realistic threat.

Either way: my understanding is that 35 years is an overt misstatement of how sentencing for repeated counts under CFAA works. I stand by the word "lie", both in its technical and moral senses.

[btilly]

I still disagree on the technical sense. 35 years is within the ability of the judge to assign. Of course the judge wouldn't, and if the judge did it would be reduced on appeal. But they claimed that that was the statutory maximum, and if you read the statute you can readily confirm that.

[tptacek]

I believe but cannot (due to crappy airplane wireless and the fact that I'm using my phone to read) confirm that there are elements missing from Swartz's offense that would have prevented a maximal sentence.

Either way, I assume we agree that the DOJ published the press release knowing full well Swartz would not actually be subject to 35 years.

[wglb]

While they lied in the sense that you are using here, there was clearly a game of intimidation going on: they upped the number of charges from four to 13 late in the game. And as a negotiating technique, the pressure was increased.

I am reminded of a quote attributed to Emanuel Lasker ‘A threat is more powerful than its execution’.

[tptacek]

I'm not sure what that point has to do with mine or 'tzs'. In any case, we agree.

[analog]

Did anybody write this before Aaron's suicide?

And based upon what evidence?

[tptacek]

Go look it up yourself.

[analog]

It's your claim. You provide the evidence.

[tptacek]

If you'd like to go from "wrong" to "militantly wrong", that is your right.