Prosecutors' deal for Swartz: Felony plea and three months in jail

http://arstechnica.com/tech-policy/2013/02/prosecutors-deal-for-swartz-felony-plea-and-three-months-in-jail/

by Steveism • 13 years ago

51 78 13 years ago

Steveism2• 13 years ago

I find the Fed's stance a bit strange. "Just" three months incarcerated and a permanent felony record or try your luck against a 35 year sentence. Meanwhile, the state of Massachusetts was prepared to drop the case entirely as was JStore. Unbelievable.

fallse7en• 13 years ago

I think the third paragraph explained their thinking:

    While they offered a relatively short sentence, 
    prosecutors were absolutely determined to get a
    felony plea and some kind of prison time, according
    to sources cited by The Huffington Post. They wanted
    those results because they believed it would justify
    their bringing charges in the first place, according
    to HuffPo.

Steveism2• 13 years ago

If it really was just to justify the whole circus then the outrage towards the DOJ is warranted. It's silly to let pride and spite ruin someone's life.

rayiner6• 13 years ago

"According to HuffPo" is not a credible citation. If we're going by rumor and innuendo, what about the claims that MIT was the one pushing for jail time?

rayiner6• 13 years ago

You're not "trying your luck" against a 35 year sentence, not in any practical sense of the term since it's a maximum. The statutory sentence for the charges was in the couple of year range. It wouldn't have been at all surprising for him to get no jail time at all.

jacquesm8• 13 years ago

You don't see spending a few hundred K to a million + as a punishment all by itself? (aside from the fact that 'it wouldn't have been surprising' are weasel words for 'there is some unspecified chance that', so in other words it also wouldn't have been surprising if he had to go to jail after all, easy to say when it isn't your life that is on the line).

thinkcomp4• 13 years ago

Reading this only magnifies the unmitigated disgust I feel towards Carmen Ortiz and her subordinates. Unfortunately, the only constructive thing we can do is make an example of them, just as they tried to make an example of Aaron.

Help put their records as prosecutors on-line where everyone can see them.

http://www.plainsite.org/asymptote/

The goal is a page like this for every prosecutor in the country:

http://www.plainsite.org/flashlight/attorney.html?id=69049

tonywebster2• 13 years ago

While I'm a big fan of getting public records online and accessible, PlainSite isn't the place to do it — every link results in a paywall. This is the opposite of what Aaron was fighting for. Asymptote, on the other hand, I think is a good idea as long as the user has RECAP installed so it can benefit the entire community by making those records openly accessible.

tptacek7• 13 years ago

Doesn't Asymptote also help build a database for Aaron Greenspan's for-profit legal offering?

I wish he'd be more up-front about this stuff.

thinkcomp4• 13 years ago

This is not true unless you are on a law firm network. Most likely the paywall you are referring to is PACER, which is what Aaron Swartz was fighting against...

nzealand• 13 years ago

It is hard to accept an unfair plea bargin like this, but it is typically your best move.

Federal prosecutors typically hold all the cards.

javajosh• 13 years ago

That is an untrue and irresponsible thing to say.

mtgx• 13 years ago

So what do you do if you think you're innocent? Take the 3 months jail deal? Some justice that is.

tokenadult• 13 years ago

So what do you do if you think you're innocent?

You go to trial if you are actually factually innocent, and you are a millionaire with a bunch of expensive lawyers and a large publicity apparatus and network of friends. Aaron Swartz's problem was that he was NOT factually innocent of all the charges considered in that case. His lawyers were aware of that, and that constrained their range of options. People who keep their behavior innocent have more options.

jacquesm8• 13 years ago

> Aaron Swartz's problem was that he was NOT factually innocent of all the charges considered in that case.

Just like those guys from HSBC. And they did their time too. Oh, wait.

glesica• 13 years ago

This needs to get more attention (even more than it is already getting). This sort of blatant disregard for anything even approximating "justice" is disgusting and has place in a developed country (it has no place anywhere, really, but a developed country has absolutely no excuse).

linuxhansl• 13 years ago

It does not change the fundamental problem: "Take this bargain and waive your right to a trial, or face <insert insane possible punishment here>".

lukifer• 13 years ago

Bingo. I think it's high time we outlawed the plea bargain entirely. If it's important enough to the public good that someone be locked in a cage for years or even decades, it deserves the cost of giving the accused their day in court, every time, no matter what.

wisty• 13 years ago

But jury trials are expensive, and time consuming. And no-one uses them anymore, because the system is broken (long waiting times), and there's no reason to fix it (since no-one uses them anymore).

It's much cheaper to say "confess your crimes or face much heavier penalties". It worked for the French Revolution, the Soviets and the Inquisition, why shouldn't it work in the USA?

Besides, the prosecutors are pretty even handed. They wouldn't prosecute someone if they didn't think they deserved a stiff penalty. As Carmen Ortiz says; "This is an adversarial system. We're here to prosecute."

jstalin• 13 years ago

A felony conviction and jail time is akin to a career death sentence for most people. You'll never get a decent job again.

mikespimpin• 13 years ago

Key words: "most people"

I have a felony computer hacking conviction and it is the opposite: I have to turn down job offers.

alt23192• 13 years ago

I have a very similar federal felony conviction that Aaron was facing and have been able to find employment in the software field. It's not as easy as it would be without the conviction, but it's a lot easier than I ever thought it would be. I doubt McDonalds would hire me with my record, but I've worked on software used by government agencies and Fortune 500 companies.

fpgeek• 13 years ago

Have you run into the travel restrictions others in this thread have mentioned?

waterlesscloud2• 13 years ago

While I don't think the offer was at all reasonable, Swartz's career prospects wouldn't have been hurt even a little bit by a felony conviction. He was in a whole different circle of career options.

tonywebster2• 13 years ago

I think person in Aaron's position most definitely would have been impacted by the conviction — a stayed sentence or probation could have included prohibitions on certain work or activities, and it would have made political relationships difficult with policymakers. If there was any amount of a wildcard in the sentencing prospects, it's a bigger deal than just "three months."

danielweber2• 13 years ago

Since graduation, I have never ever ever had anyone look into my background to see if I was a felon.

It hurts a lot of the working class, where "no ex-felons" is a cheap and legal filter.

(If I ever wanted to get a security clearance again it would be an issue -- but obviously Aaron is exactly the person who should not get a security clearance.)

ryguytilidie• 13 years ago

I love how if Carmen Ortiz actually goes to trial they will say things like "Of course, the Government just wants to make an example out of me" and put on some martyr act. Hey, remember when you were doing the exact same thing before? Yeah, thats what you're being punished for...

jacquesm8• 13 years ago

Choose: spend a million or more defending yourself or go to jail and be labelled a felon.

Damned if you do and damned if you don't, guilt doesn't even enter into it you lose either way.

mpyne7• 13 years ago

He could have also chosen not to enter an unlocked server closet...

enraged_camel• 13 years ago

Wow, I cannot believe there are still people who say this shit.

rdouble2• 13 years ago

Why couldn't he have gotten free legal services from his bud Lawrence Lessig?

jpollock• 13 years ago

A felony charge would have seriously impacted his ability to travel. This would have impacted his earning prospects both as an entrepreneur and as a researcher.

For example travel to Canada: http://www.wikihow.com/Travel-to-Canada-with-a-Felony-Charge

From that page, it can take up to a year and $1000 to apply for the visa for entry.

The data sharing between the US and other governments means that you can't keep your convictions secret either.

For example, Canada is hooked into the US databases, and they can and do retrieve information from them.

dccoolgai• 13 years ago

"Justice Department lawyers believed Swartz's "Guerrilla Open Access Manifesto" justified their bringing of felony charges because it demonstrated his "malicious intent"

This is insane. Absolutely insane...I know this was intimated before, but to hear it confirmed... You can be convicted of a felony for expressing an opinion about how to improve goverment? I have stayed mostly silent about this until now, but this is just beyond the pale.

Forget impeachment- Ortiz and the other prosecutor (forget his name) should be perp-walking for this. Their punishment should be public and severe enough that no one else in their position will think they can do this with impunity.

rm999• 13 years ago

>You can be convicted of a felony for expressing an opinion about how to improve goverment?

No, but I don't see why they can't use it as evidence in a different case. IANAL, but it seems relevant if they wanted/needed to demonstrate intent.

mpyne7• 13 years ago

> You can be convicted of a felony for expressing an opinion about how to improve goverment?

I read the indictment and I'm pretty sure it talked about something about evading network bans and hooking computers up directly to network switches. Either way though, the conviction would come from the jury, not Ortiz, something which people always seem to conveniently leave out.

The manifesto is one of the things the prosecutors use to determine if this is "just a kid on a joyride" or a repeat-offender-to-be. As such, why would they not consider that in their determination of whether to bring charges or not?

Is it your thought that someone can post an open letter saying that they intend to bring about forcible change to the law of the land, by taking matters into their own hands if necessary, and have that letter get no response from the one branch of government charged with enforcing those same laws?

And am I the only one who has noticed that he was never actually charged with piracy or copyright infringement? The ends don't justify the means, that leads only to a world where might alone makes right. By all means, open that access, but don't break into networks to do so.

GHFigs• 13 years ago

You can be convicted of a felony for expressing an opinion about how to improve goverment?

That's absolutely not what is being said there. He was not being charged because of what he wrote in 2008. He was being charged because of his observed actions. What he wrote previously was only being cited as context for why he did it and as evidence of his intentions[1]. In law, intent (if it can be proven) can make an enormous difference in what you get charged with or convicted of.

[1] e.g. "We need to download scientific journals and upload them to file sharing networks." http://archive.org/stream/GuerillaOpenAccessManifesto/Goamju...

csense• 13 years ago

Plea bargaining shouldn't be completely thrown out. It provides a way to save costs, gives prosecutors an important tool bring down criminal organizations by allowing them to bargain for testimony against the principals from peripheral members, and gives defendants who are genuinely remorseful a way to reduce their sentences.

But the Supreme Court should take a look at where the Constitutional boundaries for plea bargaining practices lie. Having a maximum multiplier would be a good idea: If a plea bargain for N days in jail is offered, no more than 3N days can be sought at trial. (Of course there has to be some way to convert different punishments into equivalent "currency" for this conversion.) The point is to keep defendants from pleading out due to pure risk management considerations, which makes a mockery of the justice system by turning it into a high-stakes poker game, and deprives defendants of due process by coercing them into giving up their rights.

DanBC2• 13 years ago

Prison is a ridiculous punishment for most crimes.

It does little to prevent crime; it does little to prevent recidivism; it does nothing to rehabilitate people; it's fantastically expensive.

There are a small number of people who need to be locked away to protect society.

Putting Swartz in jail was just an opportunity to wave a flag - "Strong on crime, strong on the causes of crime" and all that nonsense.

pygy_• 13 years ago

> It does little to prevent crime...

More often than not, it breeds criminals, by mixing minor delinquents with professional, organized criminals.

In the vein of your comment, see also this article: http://www.guardian.co.uk/society/2013/feb/25/norwegian-pris...

mseidl• 13 years ago

The recidivism rate in the USA is almost 70%, which is outrageous.

guelo• 13 years ago

According to HuffPo's sources there was also a "saving face" element to the prosecution:

"Some congressional staffers left the briefing with the impression that prosecutors believed they needed to convict Swartz of a felony that would put him in jail for a short sentence in order to justify bringing the charges in the first place, according to two aides with knowledge of the briefing."

tptacek7• 13 years ago

Rehashed content from a HuffPo piece citing the "impressions" of "anonymous staffers", plus something we already knew (months of prison time, 13 felony convictions). This is at least the second story to show up today linkjacked from that HuffPo piece, by the way.

Definitely a great excuse for us all to beat each other over the head with pointless flame wars.

What's crazy is that there is as much heat on this thread as there was on the excellent WBUR piece that took on Ortiz' record in MA:

http://news.ycombinator.com/item?id=5264200

Go listen to that, instead of yelling at people on this thread. Ortiz' office is a mess. People who recommended her for her appointment are backing away from her. WBUR did actual reporting to back this up, rather than playing telephone with HuffPo.

Flagged.

Prosecutors' deal for Swartz: Felony plea and three months in jail

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