The Aaron Swartz Prosecution & Plea Bargaining

http://www.techdirt.com/articles/20130117/02090421710/carmen-ortiz-releases-totally-bogus-statement-concerning-aaron-swartz-prosecution.shtml

by wwwtyro • 14 years ago

74 30 14 years ago

techdirt.com

gonvaled• 14 years ago

Makes a very good point. And it is exactly the same reason why torture is illegal: a sufficiently scary threat will make anybody confess of anything.

The plea system is institutionalized torture.

koide• 14 years ago

http://news.ycombinator.com/item?id=5078104

RyanMcGreal6• 14 years ago

As I've been finding myself thinking lately, US lawmakers and prosecutors need to re-read Beccaria's Of Crimes And Punishments. After its publication in 1764, the framers of the US Constitution were persuaded by its reasoning to amend the Constitution to include a prohibition on "excessive fines" and "cruel and unusual punishments".

Someone please explain to me how the threat of 50 years in federal prison and a million dollars in fines for downloading a bunch of academic papers can be considered to be anything other than "excessive" or "cruel and unusual".

rolux• 14 years ago

And someone please explain to me where the ~1.5 million dollars needed to defend oneself in a federal court actually end up.

sp4rki3• 14 years ago

I truly doubt that Aaron really thought that 50 or even 35 years was a realistic sentence to be honest. Mitnick was charged with wire fraud and illegal possession of computer files and 23 other charges and did 5 years and change. All other hackers that have been convicted by the US have done from months to 4 years, and most have even gotten the supervised release with no computer use null.

Also I really don't see the cruel and unusual here. It's the same procedure that everyone else gets. He should have taken this opportunity to help shape a movement for the change of CFAA and ITERA, enter the list of "elite hackers" that have been wronged by their country (for a great PR boost nonetheless), and bring to the spotlight his main cause of information liberation. He probably didn't take that route and opted for suicide because he was depressed or had some mental issue that was aggravated (but not caused by, I make the distinction) because of the pressure of his conviction and the existing (though very low) possibility that he might actually do hard time.

Don't get me wrong. I'm on Aaron's side, but all the fear mongering and hyperbole lately is unbecoming. We as a community are right now grasping at straws trying to make Carmen Ortiz as this horrible monster, when she was basically just a woman doing her job. She's not Charles Manson. Let's battle the CFAA and try to get things to change instead of focusing on a little woman who will most probably never suffer any repercussion for this, and seriously it's doubtful that she deserves any either.

andrewtbham• 14 years ago

I agree it is cruel and unusual. The way it is now there is a strong incentive for innocent people to accept a plea bargain. How could this be remedied? Perhaps there should be a limit on the difference in the years charged and years that can be accepted for a plea?

anonymouz2• 14 years ago

> The plea system is institutionalized torture.

That is going to far. The plea system seems to be loaded with problems, but if you don't want to make a plea bargain you can still simply go to court. Which is what you'd be doing without a plea system anyway. A sufficiently scary threat won't make you confess, it will make you choose the court route.

wwwtyro5• 14 years ago

> The plea system seems to be loaded with problems, but if you don't want to make a plea bargain you can still simply go to court. Which is what you'd be doing without a plea system anyway.

The implication here is that things would be the same without a plea system. I disagree. I think that if people regularly faced the kind of sentences that they are threatened with under the plea system, there would be political upheaval. 50 years for trespassing and downloading files? It's absurd.

The plea system as it stands is simply a means for prosecutors to acquire more convictions, and it is absolutely unacceptable. They are blatantly gaming the system, so the system needs to be changed.

wwwtyro5• 14 years ago

This quote was pretty powerful, for me:

"In this hypothetical scenario, those 10 years in prison would, practically speaking, have consisted of six months for his original crime (the sentence Ortiz actually thought he deserved) plus a nine-and-a-half-year prison term for exercising his constitutional right to a trial."

wwwtyro5• 14 years ago

Has the plea bargaining system ever been challenged in court?

mcherm• 14 years ago

Yes. And it has held up.

DanBC2• 14 years ago

Plea bargains are weird when used as a weapon to intimidate someone.

There's something vaguely similar with people (at least in the UK) wrongly convicted and sent to prison. To qualify for early release they have to atone for their crime, which means accepting guilt and feeling remorse. But you cannot feel guilt nor remorse for a crime which you did not commit, and so they don't get early release. "Say you did it; do the time; you'll be out soon enough."

See also Japanese police and courts - suspects are held for much longer than in the UK; they're bullied and intimidated; and once things go to trial there's a > 90% conviction rate.

Here's a 24 minute BBC radio documentary about forced confession in Japan:

(http://downloads.bbc.co.uk/podcasts/worldservice/docarchive/...)

Sometimes they have multiple confessors to a single crime.

funkwyrm• 14 years ago

This is a pretty good paper comparing United States plea bargaining to Germany.

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?artic...

Xylakant• 14 years ago

It's been linked and discussed here http://news.ycombinator.com/item?id=5059044 Please keep in mind that the paper is about as old as I am (34 years) and some things have changed, most notably that germany now has a plea bargaining system, though it's quite a bit different from the american one. See http://www.concurringopinions.com/archives/2009/07/german-bu... for an overview (linked from the discussion).

BenoitEssiambre• 14 years ago

Coincidentally, Aaron Swartz himself describes exactly his prosecutor's behavior:

http://www.aaronsw.com/weblog/semmelweis

The Aaron Swartz Prosecution & Plea Bargaining

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