The whole point is that they don't sentence people to 35 years - they use that as a threat to leverage them into pleading guilty. Hence the dictatorship-level 99%+ conviction rates.
Same thing happen to Aaron, they hung a 7 year sentence around his neck if he didn't please guilty to all charges and accept the deal they offered him.
Even the innocent would please guilty in those circumstances, it's the only rational thing to do.
There is no contradiction. Let me break it down again.
The original DOJ press release[0] when Schwartz was charged:
> If convicted on these charges, SWARTZ faces up to 35 years in prison
That maximum sentence is not uncommon in CFAA cases as most charges carry 10 or 5 years and layering charges together is very common (ex Mathew Keys faced 25 years on 3 charges for sharing a password)
Facing 35 years Swartz enters plea talks and is offered 6 months recommended, up to 6 years but guilty to all charges
The prosecutors tell him if he doesnt take that deal and goes to trial then they'll be seeking a 7 year minimum 35 year max
A lot has been written about the problems with not just federal sentencing and plea agreements (internationally it is a unique system) but also specific problems with CFAA and sentencing guidelines:
Again, 35 years is simply the figure derived by adding up all of the maximum sentences. Swartz had good legal advice. He knew he wasn't going to be sentenced to 35 years in jail.
The problems with plea agreements relate largely to innocent people being pressured into taking them because a trial is too risky. Swartz had clearly violated the law, so he would have had nothing to gain from going to trial in any jurisdiction.
>... realistically, Swartz was facing anything from probation to a few years in jail if he went to trial — depending largely on how you value the loss he caused — and either a 4 months in jail or 0-6 months in jail if he pled guilty.
How does that justify having a ridiculous 35 year sentence hanging over somebody for a terms of use violation? That is murder levels of sentencing
The case was far from clear cut, weev had his case overturned and the Lori Drew case was overturned specifically because the judge said terms of use violations don't apply under CFAA
I read Orin Kerr a lot, abd agree with almost all of what he says in the series he wrote on the Swartz case - I only didn't buy his justification that overprosecution is ok because all the other prosecutors also do it
Swartz's main concern was a lifetime criminal record and not being able to work, and second pleading guilty to charges that he (and many others) don't agree he was guilty to
I def agree with Kerr that the unauthorized access statutes need to be reformed tho, that would have the Swartz case irrelevant and placed it back where it belonged - in a civil court
>How does that justify having a ridiculous 35 year sentence hanging over somebody for a terms of use violation?
It's arithmetic. The maximum sentences are what they are, and their sum is what it is. Justification doesn't come into it. But a 35 year sentence was never "hanging over him". He had good legal advice. He knew that he would not go to jail for 35 years.
>The case was far from clear cut,
He physically broke into one of their network closets while attempting to disguise his identity. If that doesn't count as unauthorized access, nothing does.
>Swartz's main concern was a lifetime criminal record and not being able to work
Which, as Kerr points out, makes it absolutely baffling that he did this in the first place. It's often glossed over, but it really was an enormously stupid thing to do. It's sad that he got himself into so much trouble by doing it, but I can't see how anyone else is to blame for that. Especially when he'd already had fair warning after the PACER incident.
It was 6 months, not 6 years. http://archive.boston.com/metrodesk/2013/01/14/mit-hacking-c...
>As leverage in negotiations they told him at trial he was facing up to 35.
Again, this is a nonsense figure. Can you give an example of someone who has been sentenced to 35 years in jail for similar crimes?
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