40 years sounds like an awful brutal sentence hanging over this man's head.
Then again, the accusation is that he forged documents and emails, and deleted others, as part of a lawsuit. That seems pretty bad.
But 40 years literally takes someone's life away. The crime was nonviolent. Maybe 10 years in jail would be a harsh enough penalty? That's pretty life-changing. I suppose it's up to the judge, maybe if he wasn't using crazy methods to flee from bail he wouldn't end up with the max penalty. Seems like he's screwed now.
Actually, under the federal sentencing guidelines, if found guilty he will be sentenced based upon "intended loss" [1] - which is this case is somewhere around $15 billion. That would easily qualify him for the maximum sentence. The loss table [2] actually maxes out at $400 million.
[1] "...loss is the greater of actual loss or intended loss" - see [2]
That document only determines sentencing level, not years. You need to also reference the criminal history calculation and finally the actual sentencing guideline.
I'm well aware of how it works....I didn't say that points=years. First, 36 points (the amount he will likely have - 30+6) gives him a recommended range (if he has no criminal history) of 188-235 months. I only said that he is off the charts in terms of loss. Second, guidelines are exactly that - guidelines. A judge could easily look at his conduct and say "this is the most I've ever seen for an intended loss; therefore the statutory maximum (40 years) is warranted".
This is a curious phenomenon, then. If someone said, "max. 40 years but you probably won't get that", my mind is probably going to be stuck on the number "40 years". That's probably sufficient to terrify somebody into doing really stupid things to avoid it, like we see here.
40 years in jail means that someone is such a tyrranical menace to society that they cannot be trusted to be around other people for the rest of their life.
Then there's the No Electronic Theft Act, which Clinton signed into law. It made not-for-profit copyright infringement -- think sharing on P2P networks -- a federal felony. Previously it was a civil matter.
Now <gvb> is correct that there are sentencing guidelines that will make the likely sentence less. But even the outside possibility of a young man or woman leaving prison when they're 70-80+ years old for a non-violent crime is remarkable. (Note I'm not defending Paul Ceglia, who may well have committed fraud and should pay the price if convicted; I'm merely saying that the punishment should correspond to the gravity of the offense.)
These are DOJ stats for the year 2000, but it gives you an idea of the range for violent felonies: "The mean prison sentence for murder and nonnegligent manslaughter was nearly 20 years and 8 months." http://www.bjs.gov/content/pub/ascii/Fssc00.txt
Declan, you know you're oversimplifying the Swartz case. We've discussed this before. You are technically correct that the gap between "likely" and "possible" is decades, but that outlandish "possible" is, well, outlandish.
The difference between the 7 months Swartz was threatened with by prosecutors and "50 years" is the question of whether multiple CFAA counts for the same crime "group". We know the answer to this: they do. Defendants convicted on multiple counts of CFAA offenses for the same underlying criminal act serve a sentence for a single count (the most severe). A judge could override this, but the onus should be on the "50 years" people to cite a CFAA case in which a judge has ever manipulated CFAA grouping rules to amp up a sentence. The argument seems to suggest that a judge might be so upset by Swartz that they'd throw out a chunk of the sentencing guidelines.
Swartz's own attorney wrote, after his death, that a conviction on all counts might still leave Swartz at a sentencing level that allowed probation: his crime was non-remunerative, the statute he was charged on is oriented heavily towards financial crimes, his primary victim was unmotivated, and he had no criminal record.
When Swartz's sentence is brought up on a message board, what's really being discussed is the nature of judicial discretion versus the federal sentencing guidelines.
That's unfortunate. Leaving aside the fact that any custodial sentence for Swartz would have miscarried justice, and beyond the trauma of enduring a federal criminal prosecution, the likely guideline sentence for Swartz's charge (if you stipulate that he was guilty, which you can't do here) is not prima facie insane.
But other CFAA sentences are totally insane. When you handwave around Swartz's sentence, you make it easy for people who understand (at least a bit about) federal sentencing to laugh off other CFAA sentences. But there have been recent cases in which the CFAA's sentencing process is much more clearly unjust.
<tptacek>: Yes, we've been around this circle before, and I don't think we're going to change each other's minds.
As for Aaron Swartz's attorneys, they would have jumped at the chance for probation. They explicitly offered it as a deal to the Feds, who rejected it. Prosecutors held out for a felony plea and prison time: http://www.thedailybeast.com/articles/2013/01/15/aaron-swart...
So because of the combination of federal overcriminalization (thank you, Congress) and prosecutorial overzealousness (thank you, Carmen Ortiz), this is what Aaron had to look forward to:
If he plead guilty to a felony, he could have been sentenced to as many as 5 years... Each additional conviction would increase the cap by 5 years, though the guidelines calculation would remain the same. No wonder he didn't want to plead to 13 felonies. Also, Aaron would have had to swear under oath that he committed a crime, something he did not actually believe.http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-l...
Did you read her whole post? The hypothetical you're referring to is preceded by a paragraph that ends with "But Aaron could easily have come out to over a year in his guideline calculation" in the case where he went to trial and was found guilty.
I think sentences in the U.S. are too long. That said, "Three Felonies a Day" is a shitty book with shitty examples.
Take these examples on the website: http://www.threefeloniesaday.com/Youtoo/tabid/86/Default.asp.... It's presented in the book as a small business owner convicted for selling undersized lobster tails in plastic packaging in violation of a new-longer valid Honduran law.
Well, the mere fact that a jury convicted someone of violating Federal Law X doesn't mean that Federal Law X is a good, just, or sensible law. Aaron Swartz may well have been convicted of violating Federal Law Y, but that doesn't justify his prosecution (or the existence of Federal Law Y).
Here's a better description of the case:
Seafood dealers were prosecuted and convicted for importing lobster tails from Honduras because they allegedly violated an obscure Honduran regulation requiring that frozen seafood be shipped in cardboard boxes instead of clear plastic bags, and because about three percent of the 70,000 pound shipment consisted of Caribbean spiny lobster tails that were less than 5.5 inches in length, which allegedly violated another Honduran regulation on size limit...
Because the seafood was shipped in clear plastic bags instead of opaque boxes, they were also charged with "smuggling," even though the shipments regularly went through Customs inspections and testing by the Food and Drug Administration at the port near Mobile, Alabama...
There was just one problem with the Justice Department's case: the Honduran regulations that served as the predicate for the charges were later declared to be null and void, repealed, and otherwise of no legal effect by Honduran courts, the Honduran Attorney General, and other high level Honduran officials, including the Honduran Human Rights Commission. The Honduran government took the extraordinary step of filing a brief in the court of appeals, and again in the Supreme Court, providing the official views of the country that the regulations were invalid.
It sounds like you owe Harvey, who wrote Three Felonies a Day, an apology (he was EFF's first lawyer, I recall, and I wouldn't be surprised if he reads HN occasionally). But I have no brief to defend the book or talk at length about lobster tails; my point was overcriminalization is real.
This comment is unresponsive to its parent, which directly addresses the summary of the case you've provided.
We know that there are people who believe someone was given an 8 year sentence for shipping a small amount of lobster tails in violation of Honduran law and for storing them in bags and not boxes. That's the headline of Silverglate's argument.
What wasn't clear was that the offenders had hauled fifteen million dollars of illegal lobster tails, deliberately selecting out-of-the-way ports with under-staffed inspectors, using bags (unlawfully) to conceal the amount of their take that violated regs, as part of an elaborate scheme that involved processing companies in Honduras and, at one point, a smuggling route through Canada.
I think one of the problem in the Swartz case is that the sentences from multiple felonies add up; otherwise there was no way to arrive at such a ridiculus penalty for a copyright violation. In many countries this is not possible, eg. in Austria you will get no more than the maximum sentence even if you are convicted of multiple felonies.
To be fair, the guy was trying to steal half of Facebook. That's a huuuuge amount of money. Plus the falsifying legal documents to do it.
But yeah, 40 years is a long time. It's hard to make comparisons between sentences in the US because everything has an absurdly long prison sentence tied to it. :\
Yeah. Even arrests with no conviction can make someone's life much harder. Imagine 5 years - which is considered a very low sentence by US standars - during a person's prime productive years (let's say, at 22).
There will be a 5 year gap in the applicant's resumé, where he not only was unemployed, but in jail. Good luck landing a job if you are of a Kevin Mitnick caliber.
Personally, if presented the chance to be financially set for life at the risk of going to jail for a decade, I might go for it depending on what I thought my odds were.
Conversely, if there was a risk of going to jail for 40 years then no odds short of 99% could convince me to risk it.
I work in the correction industry with devices like this one. Most devices don't have accelerometers in them so so the "motorized contraption" would not be needed, the picture is too blurry for me to make out what brand of ankle bracelet this is or I could tell you if it has one. GPS drift would make it impossible to tell if someone is moving in their house (Normally looking at GPS points shows a clustering around the house and sometimes as far as a 50+ meters outside their house.
As to those asking how he got it off, the article says it was "sliced" off so my guess is he cut the strap (then lied about the fall) which cut the fiber optic cable in the bracelet, he then reattached the fiber optic cable and taped it up. The police SHOULD have been sent as soon as they got a strap tamper alert but it appears they believed the fall story. Note most of the time police don't talk to the participants when this happens, rather a monitoring company staffs a call center then send recording of the call and notes to the user's supervisor who then can choose to alert the police. Apparently there is another way to get these off if the bracelet is loose enough that involves a plastic bag and sliding it off (a co-worker mentioned a video going around of it but I've never seen it) but due to the fact this article mentions they were alerted to it being tampered with I doubt that is the case.
If all he needed to do was to show some movement of the tracker, he could have just duct-taped it to a Roomba. He'd get much more realistic motion with much less effort.
the idea of faking your own location through attaching your GPS anklet to a Roomba, for
example, and letting it wander around the house all day is perversely brilliant, like
something from a 21st-century Alfred Hitchcock film. Of course, it wouldn't take very
long to deduce from the algorithmically perfect straight lines and zig-zag edge
geometry of your Roomba's movements that it is not, in fact, a real person walking
around in there—or perhaps it would just look like you've taken up some bizarre new
form of home exercise.
But a much more believable algorithm for faking the movements of a real, living
resident could be part of some dark-market firmware update—new algorithms for the
becoming-criminal of everyday machines.
The monitor needed to be charged as well. So while the roomba would be charged, the monitor could very well die and cause the same suspicion as if it were off.
Like the scene in Home Alone where the kid puts cardboard cutouts on a model train set, to make the burglars think there's a party happening at the house. :)
The criminal case was brought against Ceglia when it became apparent that his claims to a stake in Facebook were based on forged documents. That's fraud; it's a criminal offense.
It's interesting that the big law firms like DLA Piper[0] who backed him pro bono and conducted "extensive due diligence" on his claims walked away without even much of a tarnished reputation.
Thanks to grandparent for clarification. Allegedly forging documents will get you in trouble quickly certainly. I suppose it depends on the resources the big law firm has for spotting forgery.
It says in the article that the police were alerted to bracelet tampering: "The filing said the authorities got suspicious that something was awry with the GPS device on March 6. An agent spoke with Ceglia on the phone and "Ceglia reported that the bracelet had been damaged in a fall." But the agent said it subsequently was "functioning properly" until the next day."
This implies that these things must throw false alarms with some regularity, otherwise this would have been a huge red flag and they wouldn't have hesitated to follow up immediately.
This seems likely. Even if you get him on the phone, you could have an officer drive by sometime in the next day to visually inspect that the ankle bracelet is still there.
(Of course I would get a second bracelet and strap a dummy one to my leg to show to the officer. Officer would need some way of verifying he's seeing the right one.)
Then again, the accusation is that he forged documents and emails, and deleted others, as part of a lawsuit. That seems pretty bad.
But 40 years literally takes someone's life away. The crime was nonviolent. Maybe 10 years in jail would be a harsh enough penalty? That's pretty life-changing. I suppose it's up to the judge, maybe if he wasn't using crazy methods to flee from bail he wouldn't end up with the max penalty. Seems like he's screwed now.
This whole thing makes me uncomfortable.