

Aaron Swartz: Unequal Justice for Web Activists vs Health Care Executives - BenoitEssiambre
http://hcrenewal.blogspot.ca/2013/01/the-tragic-case-of-aaron-swartz-unequal.html

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mjcohenw
And, of course, none of those bankers are in jail, where they should be
rotting.

Even if a company is "too big to fail", its executives are NOT "too important
to jail"!

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InclinedPlane
To put this in perspective, the people who have received similar sentences to
what Aaron was facing were folks such as John Rigas (Adelphia), Bernard Ebbers
(WorldCom), Ken Lay (Enron), or Michael Milken. Folks who maliciously
defrauded thousands of people out of totals of billions of dollars, for their
own financial benefit.

~~~
slapshot
No, the _maximum_ sentence under the Constitution and the statute was 35
years. The sentence he was likely to receive was 6 months if he took the plea
bargain (and there are rumors that a no-jail plea was considered), or less
than a year if he went to trial and was convicted.

There's a huge difference between the statutory maximum sentence and the
sentence people actually receive. Shoplifting is petty theft and in almost all
states that's punishable by up to a year in jail, but most first-time
offenders get off with community service.

Aaron was charged with wire fraud, which covers crimes ranging from skimming a
few bucks off a credit card reader to trying to take down the stock market as
a whole. The _maximum_ sentence Aaron faced was 35 years, but there was no way
that any judge would ever sentence him to that.

In fact, the United States Sentencing Guidelines [1] were introduced about 20
years ago to make sure that judges were issuing sentences that were
proportional to the crime committed. In short, the severity of crimes is
ranked on a scale from 1 to 40+, and the criminal history of the defendant
(i.e., how many prior convictions) is rated from 1 to 5. From those numbers, a
sentencing range is calculated.

Here, the crimes Aaron was charged with are a severity of 7 (of 40) and he has
no prior convictions (so he's a criminal history of 1). On the big old matrix
[2], that's a sentencing rage of 0-6 months. Even if you assume he picks up a
few more points along the way, he'd have been looking at 4-10 months. Judges
can only exceed the Guidelines in extreme cases and most sentences higher than
the Guidelines are struck down on appeal.

For the gory details, see here [3] where the full Sentencing Guidelines
analysis is performed.

[1][http://en.wikipedia.org/wiki/United_States_Federal_Sentencin...](http://en.wikipedia.org/wiki/United_States_Federal_Sentencing_Guidelines)
[2]
[http://www.ussc.gov/Guidelines/2012_Guidelines/Manual_HTML/5...](http://www.ussc.gov/Guidelines/2012_Guidelines/Manual_HTML/5a_SenTab.htm)
[3] <http://news.ycombinator.com/item?id=5063435>

~~~
InclinedPlane
The fact that Aaron faced jail time that was appropriate only for people who
maliciously defrauded others to the tune of billions of dollars for personal
benefit is the problem. The fact that the only way to receive a fair sentence
was to give up the right to a trial is the problem.

If the outcome of a trial was potentially 6 months in prison then the
likelihood he would endure a trial would be far, far higher.

Instead the criminal justice system was abused, and a disproportionate
punishment was put on the table to scare Aaron (as it has been used to scare
so many other defendants) into taking a plea bargain and give up on having his
day in court.

That's a perversion of justice and something that we should in no way be
comfortable with.

~~~
slapshot
Any attorney Aaron hired would be able to read the sentencing guidelines
manual (it's published in a convenient softcover version that any federal
criminal attorney has on his/her desk) and inform Aaron that the maximum
realistic sentence was less than a year, and that as long as the sentence was
on "Zone A" on the chart I provided, the judge would be free to give probation
with zero jail time.

The maximum sentence was 35 years because that's the maximum penalty for all
forms of wire fraud. The prosecutor is constitutionally required to inform the
defendant of the maximum sentence. If you ever sit in on a plea colloquy
you'll hear the prosecutor tell the defendant the maximum sentence and the
defendant acknowledge the maximum, even if everybody knows that the sentence
will be time served, or probation, or just a fine/restitution.

I don't know why Aaron's lawyer dropped the ball on this.

~~~
toyg
_> I don't know why Aaron's lawyer dropped the ball on this._

We don't know he did.

From his (and Lessig's, who was also involved) statements, it looks like he
got the feeling that Heymann and Ortiz were not bluffing, that they wanted to
make an example out of Aaron and lock him up for real. We can only second-
guess their motives (and many have done just that, in the last four days), but
from what it has emerged until now, there was a real sense in Aaron's legal
team that the prosecution was bent on throwing him in jail, even just for one
day, and would have had it from any judge in the circuit. For sure, there was
no incentive for the prosecution to be lenient: no loot to recover, no co-
conspirators to turn, no scandal to keep quiet, nothing.

I guess we'll know a bit more about all this in a year or two, when
investigative books will come out and people in the US Attorney office will
start unbuttoning, or maybe after the next Presidential cycle if there is a
party switch at the top.

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danso
Hard to give this article the benefit of the doubt when it comes to get
details and particulars right with this line:

> _Aaron Swartz was a prodigy who developed the RSS system for disseminating
> updates on web-site contents_

He worked on the spec at a young age. But he did not develop the system.

