
Prosecutors' deal for Swartz: Felony plea and three months in jail - Steveism
http://arstechnica.com/tech-policy/2013/02/prosecutors-deal-for-swartz-felony-plea-and-three-months-in-jail/
======
thinkcomp
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>

~~~
tonywebster
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.

~~~
tptacek
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.

~~~
thinkcomp
It helps build the Internet Archive's open database of legal documents, which
PlainSite re-presents to the public for free, OR if you want to pay, also
provides additional analytic data about.

Your characterization of the initiative as being solely designed to benefit me
financially is misleading and inaccurate, and I disagree with your assertion
that I somehow should have been more forthright.

~~~
tptacek
"Solely designed to benefit me financially"?

    
    
        al·so  
        /ˈôlsō/
        Adverb
        In addition; too.

~~~
thinkcomp
That's correct, Operation Asymptote is helping to place public information in
the public domain, and I am also making a profit from public information once
it is in the public domain, as is my (and anyone's) right. But I did not
create Operation Asymptote because I thought it would make me rich; I created
it because it serves an important public good and because I knew Aaron Swartz
and respected him.

I do not find it necessary to explicitly disclose beyond what it already
obvious from the PlainSite web site that I may capitalize on opportunities
that are available to everyone, and which my work (and funding of others'
work) has made more available to everyone.

Would you prefer that information not be in the public domain at all because I
might make a profit from helping to organize it? Or are you saying that I have
an obligation to disclaim that I might hypothetically make more of a profit
from there being more public information in the public domain, which applies
as much to you as it does me? Or are you (also) saying that I may not earn a
living by any means and discuss circumstances surrounding or even unrelated to
those circumstances unless they happen to meet your particular standards
first? Or are you saying that no one should be entitled to profit from public
information at all and that only the government should be able to dictate what
information will be disseminated and how?

If you think you can do a better or somehow more "pure" job than I have making
public information surrounding the justice system more accessible, please, by
all means, go ahead. I and many others would be grateful.

In the meantime, whatever you are saying, I find your comments incredibly
callous, disrespectful, and misleading (because you make it sound like the
data goes to only me, when really it goes to the Internet Archive RECAP
database) and I once again request that you stop.

------
jacquesm
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.

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

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

~~~
mpyne
I can't believe there are still people who think that personal responsibility
for one's actions don't apply if the politics of those actions are persuasive
enough, yet here we are.

~~~
polymatter
The punishment should fit the misdemeanor. Jail time and a felony conviction
is an extremely harsh punishment for surreptitiously downloading academic
articles. Anyone with a speeding ticket has committed a far graver threat to
society.

~~~
tptacek
It is easy to believe both that Swartz's actions were wrong and that the
prosecutors actions were wrong. Or even that the prosecutors were more wrong
than Swartz. That's what I think.

So the feigned incredulousness of that comment upthread isn't particularly
convincing.

------
tptacek
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.

------
linuxhansl
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
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
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."

~~~
njharman
> But jury trials are expensive, and time consuming.

[I think you're being sarcastic, but...]

The converse, plea-bargaining making prosecution easy and profitable (see
seizure law), has resulted in huge expansion of laws making ordinary
activities illegal.

If it was hard and expensive then we wouldn't outlaw behavior every time some
twit get's their panties' in a twist. And we wouldn't automatically bend-over
and use the criminal justice system to prop up failing business models.

------
DanBC
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_
_> 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...](http://www.guardian.co.uk/society/2013/feb/25/norwegian-prison-
inmates-treated-like-people)

------
Steveism
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
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.

~~~
rayiner
"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?

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csense
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.

------
dccoolgai
"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
>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.

------
ryguytilidie
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...

------
glesica
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).

------
jpollock
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.

------
guelo
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."_

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

~~~
waterlesscloud
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.

~~~
danielweber
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.)

~~~
DanBC
Isn't it a standard question on application forms? In England it seems to be?
(They don't count some traffic offences.) So, it's possible to lie, but lying
is grounds for instant dismissal. (And possibly being sued for breach of
contract.)

We have something called "Criminal Records Bureau" checking, which is used for
anyone working with vulnerable people. (Children, old people, people with
mental health problems, people with learning disabilities, etc etc.) There has
been a problem with people using these too often (ie, for jobs that don't
require them) and rejecting people for convictions that are either very old or
that have no relevance.

~~~
danielweber
It's a typical question on a job application. In the US, about all fast-food
jobs have applications.

But I've never filled out a "job application" for a software development
position. For the kind of jobs that are typical of American readers of Hacker
News, employers asking about your arrest record is less likely than them
asking where/if you went to college.

(There are certain classes of software development jobs where a felony
conviction would matter, like defense work.)

------
nzealand
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
That is an untrue and irresponsible thing to say.

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

~~~
tokenadult
_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.

~~~
jacquesm
> 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.

~~~
mpyne
"But mommy my friend's mom let's him stay up aalllllllllllll night! waaa"

