I guess it's pretty much what you would expect them to say. I still don't think threatening to prosecute him with a charge that could put him in jail for multiple years for an act that should have had a maximum penalty of no more than 30 days is anything they should have done or been able to do, and the fact that they "offered" to make him a felon for the rest of his life and send him to prison for "only" six months if he would waive his right to bankrupt himself proving that he didn't do it is not exactly endearing. But it's what they do every day, so naturally they think it's normal.<p>I've already lost count of how many times I've said this in the last few days, but we need to fix this. These laws have got to change so that this can't happen.
They didn't threaten him with the maximum sentence allowed by the law. They also didn't duct tape him to a chair and electrocute him. The two statements are approximately as meaningful, since Swartz was charged with 13 felony counts and the maximum penalty for his case would have been longer than the base penalty in California for murdering a police officer during the commission of a felony.<p>What they did instead was threaten Swartz with a calamitous 6-7 year sentence if he exercised his right to a jury trial, demanding instead that he testify under oath that he was guilty of 13 felonies and accept 4-6 months in prison.
Carmen Ortiz's defence is an attempt to shift the Overton window.<p>Her argument is that he was charged with so many charges that if he was given the maximum sentence on all of them he would have been put in prison for a very long time. That sets the upper limit of the Overton window. Instead of that upper limit, she is quick to point out that he was offered six months imprisonment if her admitted to the charges.<p>But taken without context, six months imprisonment for non-violent activities that, even if they had been successful, would have been very unlikely to have had a significant adverse impact on anyone is extremely disproportionate.<p>The other problem with her 'maximum sentence' argument is that it was the USAG office that decided to charge him with multiple charges all relating to the same events. If they had just charged him with "access[ing] a computer without authorization or exceeding authorized access" and no other charges, the maximum sentence allowed under 18 USC 1040 would have been 10 years (see <a href="http://www.law.cornell.edu/uscode/text/18/1030" rel="nofollow">http://www.law.cornell.edu/uscode/text/18/1030</a>), and under the sentencing guidelines he would have fallen under Offence Level 6 (see <a href="http://www.ussc.gov/Guidelines/2012_guidelines/Manual_HTML/2b1_1.htm" rel="nofollow">http://www.ussc.gov/Guidelines/2012_guidelines/Manual_HTML/2...</a>). Assuming no criminal history, the sentencing guidelines would dictate 0-6 months imprisonment and/or a $500-5000 fine.
The statement contains no new news, it was already reported that there was an ultimatum from the prosecution for him to either plead guilty to all 13 counts, or go to trial where he faced a sentence of up to 50 years in prison.<p>Attorney Jennifer Granick, the Director of Civil Liberties at the Stanford Center for Internet and Society, pointed out that plea offers are not binding on the court and are presented as optional suggestions for the judge to consider during sentencing. Normally the judge goes with the "neutral" sentencing guidelines, regardless of any deals.<p><a href="http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-losing-aaron-swartz-part-2" rel="nofollow">http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-l...</a><p>In this case, neutral guidelines are capped at 5 years per count, for a potential sentence of 65 years in prison, with the guilty plea deal.<p>As Granick states:<p>> [T]he court is not constrained to sentence as the government suggests. Rather, the probation department drafts an advisory sentencing report recommending a sentence based on the guidelines. The judge tends to rely heavily on that "neutral" report in sentencing. If Aaron pleaded to a misdemeanor, his potential sentence would be capped at one year, regardless of his guidelines calculation. However, if he plead guilty to a felony, he could have been sentenced to as many as 5 years, despite the government's agreement not to argue for more. 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.<p>Those who argue that Swartz should have plead guilty to all 13 counts are either unaware of these facts, or choose to present their opinion in a way designed to mislead the public that the prosecutor's deal was reasonable.
If they were only looking for a 6 month sentence, why did they charge him with 11 counts of fraud?
The judge is free to disregard the proscecution's recommendations and sentence the defendant to the full legal maximum. This is not common in federal cases, but it does happen.
The statement makes clear what I had suspected, as a lawyer, from the outset: Lessig, some criminal defense attorneys, and a few other parties have mounted a witchhunt that has little to do with the case in hand.<p>I should add that I'm not far from Lessig politically, and I don't have any strong disagreement with open-information advocates. But Lessig turned this case into something it shouldn't have been, and he benefits from that personally. Aaron's lawyer, a partner at a major firm, is using this case for his own personal publicity, and that is a shame too. "Follow the money" works for people who manipulate hackers too, not just those who oppose them.<p>I've noticed a lot of legal mistakes in this forum. To start with, the attempt here wasn't "victimless," and the law routinely punishes unsuccessful attempts even when nobody is hurt. "Computer hacker offered plea deal of six-months in minimum-security prison after seeking to make an expensive archive that generates significant revenue public" wouldn't arouse anger among anyone except extremists. It might arouse political disagreement, or even a small protest, but not a call to fire prosecutors. What it aroused before Aaron's suicide was a small effort to raise money for his legal defense, which didn't really go anywhere. If we're going to be rational, that shouldn't change when a defendant commits suicide while the case is pending.<p>There's other manipulative PR worth identifying. Aaron's lawyer said that he told the prosecutor his client was a potential suicide risk. How does anyone who reflects for a minute think that a prosecutor's office should respond to that. They did what they usually do, which is to tell the lawyer that they could revoke bail and monitor the client if that was what the client wanted. What else should they have done? Do we think all charges against suicidal people should be dropped?
"As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible."<p>Then why did you prosecute a terms of service violation? Or do you mean "protecting" the use of computers by restricting it to only those purposes you happen to like?
> I know that there is little I can say to abate the anger felt by those who believe that this office's prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life<p>If MIT asked to drop the charges, then you not only wasted taxpayers money but whats more importantly, as a result, you've helped young man to take his life.<p>> The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably.<p>Yes of course Ms. Ortiz; so were those military and political leaders in Germany circa 1939 and see how they ended: <a href="http://en.wikipedia.org/wiki/Nuremberg_Trials" rel="nofollow">http://en.wikipedia.org/wiki/Nuremberg_Trials</a><p>Nobody will live forever Ms. Ortiz. I hope Aaron will wait for you at Heaven's gates and handle you a key... to hell.
Prosecutors routinely over-charge in an effort to intimidate defendants into plea deals. It's very effective on the vulnerable, often with tragic consequences.<p>When justice is measured in the number of convictions and sentences handed out and not low crime-rates, this is what happens.
<i>>I must, however, make clear that this office's conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably.</i><p>No, it wasn't appropriate. Both MIT and JSTOR had declined to continue prosecution. Her office over charged to force a plea bargain with 6mo of prison time and would have turned Aaron into a felon.<p>This is so much CYA bullshit from the government. It's time to stand up to these bullies.
I'm impressed that a US Attorney is responding to criticism. I will remain cynical, however, because there are hundreds who are suffering from these types of tactics. I doubt we'll see this type of outpouring for all those who have been subjected to this type of prosecution.
I'm surprised by the level of "human-ness" the statement shows. It would have been very easily for the office to take a more empty position a la "we have nothing to say - we were doing our jobs."<p>That being said, other than the unexpected personal touch, this is basically what we all assumed they'd say. "We're sorry. He broke the law - we were doing our job."<p>So in the end, this doesn't change anything.
Wasn't the assistant of the US attorney involved in this case, too, and people asked him to be fired as well? I could see why he's defending the case.<p><a href="https://petitions.whitehouse.gov/petition/fire-assistant-us-attorney-steve-heymann/RJKSY2nb" rel="nofollow">https://petitions.whitehouse.gov/petition/fire-assistant-us-...</a>
So these were the choices they offered him:
- Plead guilty and become a felon (even if he believed otherwise, and clearly against his conscience.)
- Or face 13 felony counts, potentially leading to a very lengthy prison sentence.<p>The prosecutors were trying to make sure the case never goes to court. This is disgusting!
The indictment doesn't say anything about the penalties sought. Anybody have handy the primary sources indicating what penalties the prosecutors were pushing for?
It would be interesting to see what she, or some AUSAs, have told the courts in their pleadings.<p>I'm not sure if PACER (<a href="http://www.pacer.gov/" rel="nofollow">http://www.pacer.gov/</a>) has all the criminal pleadings, but it might have those. Its another thing in the long list of items that should be completely free to access.
It sounds like the response is trying to say without saying that there was no great big fateful choice of "plead guilty to something you think wasn't wrong and do 6 months or probably get 30 years."<p>I suspect everything they said to Aaron without saying in their dealings with him attempted to convince him that was his choice exactly.