

The Aaron Swartz Prosecution & Plea Bargaining - wwwtyro
http://www.techdirt.com/articles/20130117/02090421710/carmen-ortiz-releases-totally-bogus-statement-concerning-aaron-swartz-prosecution.shtml

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wwwtyro
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."

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DanBC2
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/...](http://downloads.bbc.co.uk/podcasts/worldservice/docarchive/docarchive_20130103-0100a.mp3))

Sometimes they have multiple confessors to a single crime.

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gonvaled
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.

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RyanMcGreal
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".

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sp4rki
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.

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RyanMcGreal
> It's the same procedure that everyone else gets.

That was also true of torture, flogging, stocks, breaking on the wheel,
burning at the stake, the heretic's fork, knee splitters, the rack,
thumbscrews, and the other various sadistic forms of punishment that every
European civilization routinely used on its prisoners before they were
condemned as barbaric and banned.

They were not regarded as "cruel and unusual" because they were uncommon, but
because they went against contemporary ideas of fairness, civility and
efficacy as legal tools.

I would argue that the threat of 35 or 50 years in a federal prison for a
victimless act of civil disobedience is similarly "cruel and unusual" against
today's ideas of fairness, civility and efficacy.

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sp4rki
My point is that he was not going to serve 50 nor 35 years. There is a lot of
precedent already regarding "cyber crimes", and in most of them the served
time is but a fraction of the maximum penalty. This happens each and every day
and is the reason that plea bargains, judges, and juries exist.

On another point, you mentioned a plethora of violent punishments, which the
topic at hand isn't. First it wasn't a punishment _yet_ , second it wasn't
violent, third it isn't unusual at all as it's the same process used for
almost every criminal trial specially in an accusatory trial, and fourth
cruelty is in the eye of the beholder. On this last point I'd like to make one
distinction: cruelty is mostly referred to in two different contexts: 1)
Physical pain: in which case there was none to speak of here, and 2) Disregard
for the suffering of others (irregardless of physical pain): in which case she
is both crueler than you and me because she prosecuted a bright young man with
all means available to him to the point of having an influence in his death,
and as cruel as both of us because we've all been in a position in which we
have not cared about the suffering of another human being, either because
you're (not directed to you, just trying to make a point here, don't take
offense) not interested in middle eastern politics and international conflict,
or because I didn't want to give my last dollar to that poor homeless man on
the corner with arthritis.

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RyanMcGreal
> My point is that he was not going to serve 50 nor 35 years.

 _If_ he pleaded guilty, he was offered a high likelihood of serving only a
short prison time.

I will set aside my contention that even a day of time in a federal prison is
disproportionate for what amounts to a TOS violation, and instead focus on the
fact that a short prison term would only come with a guilty plea.

The prosecutor used the threat of 35-50 years in prison to get Aaron to accept
a guilty plea. If he chose to plead not guilty and attempt to defend himself,
it would cost well over a million dollars in legal fees, and if he were found
guilty anyway, the judge would be strongly predisposed to make an example of
him by giving him a very long, punitive sentence.

A prosecutor forcing someone to admit guilt by threatening a life-destroying
cruel and unusual punishment if they do not admit it - why, that is the very
essence of using torture to extract a confession!

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

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

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

[http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?artic...](http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1532&context=fss_papers)

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Xylakant
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...](http://www.concurringopinions.com/archives/2009/07/german-bundestag-
passes-plea-bargaining-law.html) for an overview (linked from the discussion).

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wwwtyro
Has the plea bargaining system ever been challenged in court?

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mcherm
Yes. And it has held up.

