He could only get the 6 month (rather than 35 years) prison sentence by waiving his right to a fair trial. So exercising his constitutionally guaranteed right would result in a seventy-fold increase in his worst-case outcome.
> He could only get the 6 month (rather than 35 years) prison sentence by waiving his right to a fair trial.
If he willingly engaged in a jury trial and somehow still got convicted, with a strict judge, and a jury that hates him, and an incompetent defense, he still wouldn't get anything approaching a 35-year sentence.
Is it really too much to ask to not use hyperbole for matters as serious as this? You could just as well be saying that the taxpayers are paying for Sandra Fluke to have sex.
Please, please, I'm begging you all: By setting up an echo chamber and inventing your own "facts" and then taking action based on that made-up dream world, you're just as wrong as "the other side".
> he still wouldn't get anything approaching a 35-year sentence.
You don't know that.
As tptacek and an actual computer criminal defense lawyer points out:
Granick: Important to remember much lower burden on prosecution at sentencing; “reasonable” loss claims on “preponderance of evidence”. Net-net: If charged with 13 felonies, you can’t lose on ANY, because even if acquitted on 12, they strike back at sentencing.
From this I conclude the game-theoretic payoff matrix is the message: don't bet on a fair trial, even if you're completely innocent. Prisoner's Dilemma indeed.
You are. You're skipping the most important part of the criminal process: the trial.
* don't bet on a fair trial, even if you're completely innocent. *
Hyperbole, and dangerous exaggeration. The "beyond a reasonable doubt" standard is a very high standard. I've won jury trials where the evidence all supported the prosecution's case (seriously, I had no evidence) but was not sufficient to reach this standard. Federal judges are even stricter at forcing federal prosecutors to satisfy this standard--they'll frequently dismiss the case without even letting the jury deliberate.
If you think jury trials are patently unfair, you need to actually go down to a courtroom and watch the jury trials. You'll learn a lot, and you'll discover that the justice system is not even remotely as lopsided as you think it is...once you get to the trial stage. (But yes, it's definitely lopsided in favor of the prosecution at every stage before trial.
But I didn't say "jury trials are patently unfair" or even that trials in general are impossible to win.
Aaron was weighing a guaranteed felony record and 6 months in prison against 0 (if acquitted on all 13 charges) to 50 years at some unknowable probability.
Clearly the prosecutor wanted him to think that invoking his right to a trial was a "bad bet".
>he still wouldn't get anything approaching a 35-year sentence.
What difference do you think this makes? Even a 1 year sentence will utterly destroy your life. And that's just your life outside. God forbid you get raped or something during that time.
He could have either taken 6 months and the charge, or the maximum sentence. Note: This happens every single day for all types of crimes all around the US.
That's the most terrible thing about it - it happens every day that people are bullied into surrendering their right to fair trial, and nobody cares. With current system, the right for fair trial is mainly for somebody that could afford to spend a million dollar on it or that is famous enough to have public support and donations. For average Joe, once you got charged with a crime, your life is ruined in any case, whatever jury says. And given that prosecutors have much more knowledge of how juries work than you - getting a bargain may be your only chance to be free in next 10 years or so.
I don't find the "other top HN post right now" regarding this, but as I understand it [paraphrasing], nobody told him "hey, you'll probably get 6 months", they only told him "hmm, you can reduce it to 25 years. maybe. if you beg."
"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."
If they're happy to use the figure when seeking media attention, they have to accept its use when they're in trouble.
Except he wasn't facing 35 years in prison...If he wanted to take the charge he could have, but he was facing 6 months if he wanted to look out for his best interests. The comments here keep making it seem that he was going to realistically do 30+ years in prison which is obviously incorrect.
he wasn't accepting admitting to being a felon so it was very likely he was in fact going to get 35 years in prison for a TOS violation.
Also, the practice of "admit you're guilty, else go to prison for (life|35 years)" is a common practice of totalitarian states used to crush dissenters and activists.
A guilty verdict from a jury is not an automatic maximum sentence. The mostly-mandatory Federal Sentencing Guidelines would have called for an actual sentence of 4-10 months in this case.
In the federal system, broad classes of crimes ("murder", "robbery", "wire fraud") have been assigned maximum sentences. For example, under no conditions can a sentence for wire fraud exceed 20 years (you get to the theoretical max of 35 in this case by adding the other charges, but they in the case everything would likely be folded into wire fraud on sentencing because all of the charges were based on the same conduct).
But most defendants convicted of wire fraud (even by a jury) don't serve 20 years. In fact, many first-time offenders don't serve anywhere close to that -- it's usually under a year.
Instead, the Federal Sentencing Guidelines [1] are a mostly-mandatory (there are constitutional reasons why judges are allowed to depart from the Guidelines, but it's rare and requires justification) system to calculate a range that a defendant will actually serve following a jury conviction.
Here, wire fraud is a "level 7" offense.[2] That offense level can be adjusted upward or downward based on other facts of the crime (e.g., was stock fraud involved? add 4). Assuming that Orrin Kerr was right and the total loss was $5,000 or less, there would be no adjustments and so Aaron's offense level would be 7.
Take that to the sentencing chart[3] and you can calculate that if Aaron had no priors he would be in criminal history category I and have an offense level of 7, which would be a sentence of 4-10 months. That's unpleasant, but it's a far cry from being "likely ... to get 35 years."
In fact, if you look at the sentencing chart, the only way for a first-time offender to have a Guidelines range of 35 years is to be above an offense level of 40. It takes serious work to get there: even a wire fraud of more than $300,000,000 in damages won't get you to that offense level. To get an offense level of 40, you're looking at first degree murder.
Familiarize yourself with the sentencing guidelines and you can see what was actually likely. A judge _could_ depart from the guidelines, but sentences significantly above the guidelines for a first-time offender are all but guaranteed to be struck down on appeal.
To take another example of the difference between maximum and actual sentences: the maximum sentence for murder in many states is death, but not everyone convicted of murder gets the death penalty.
Edit: Incidentally, the prosecutor is constitutionally _required_ to inform defendant of the full statutory maximum sentence, even if it's not realistic in a particular case. Failing to do so can be grounds for reversal of a plea or conviction. That doesn't mean the prosecutor has to tell the media, but he/she must tell the defendant.
If these numbers are really all just meaningless and in "reality" he was really only looking at...a year? why is it that nobody, even sources like Lessig, seem to be saying this.
> If these numbers are really all just meaningless and in "reality" he was really only looking at...a year? why is it that nobody, even sources like Lessig, seem to be saying this.
Because it goes in opposition to the worldview they're trying to push...? Everyone has a bias, you, me, Dr. Lessig, aaronsw, the prosecutors, EVERYONE.
It's like when the music/movie industry tries to claim that an illegally copied media file costs them hundreds of thousands in damages.
In this case you could theoretically get to 35+ by taking up all the charges, handing down sequential sentences (as opposed to the more-normal concurrent sentences), and somehow making all of those individual sentences go to the upper range of the permitted scale.
I and a few others have been trying to point out that 35 years in prison was never an actual option for some days now but I think it's kind of gotten lost in the storm...
> I and a few others have been trying to point out that 35 years in prison was never an actual option for some days now but I think it's kind of gotten lost in the storm...
here's what would help. If you are in fact a criminal law attorney and know these things via practice, or if you can point us all to some links of well respected criminal attorneys, without a stake in the case, on the record saying "it's very unlikely he would get more than four years".
Yes, we are all aware of the plea bargain. There have been several discussions about it already; I think most of us are disturbed by the implications of the practice.
