For another, because the guidelines are pretty specific in this case --- that 2B1.1 crimes are charged according to --- well, here's the wording from the guidelines: "the applicable base offense level is determined by the count of conviction that provides the highest statutory maximum term of imprisonment.". So "3x20" seems off the table.
> For downloading academic papers, he was facing a punishment that could have gone to literally millions of dollars in fines and up to 35 years in prison
He wasn't realistically facing 35 years. He could not get anywhere near that under the federal sentencing guidelines. See this prior discussion for details: https://news.ycombinator.com/item?id=7996807
Prosecutors in the Swartz case were actually asking for about 7 years, which was still much higher than they were likely to get. Swartz's own lawyer thought that he'd probably just get probation if convicted.
The DOJ really needs to stop using this stupid method of writing press releases. They wrote the indictment and so they sure as hell better know exactly what they are charging and what facts they are alleging, so they should be able to figure out the guideline sentence that would result if they won on all counts. That's what should be in the press release.
I look then to Section 5G1.2{d) of the guidelines, which
tells us that where there are multiple counts, and the
guideline range exceeds the statutory maximum for the most
serious count, the court must impose consecutive terms of
imprisonment to the extent necessary to achieve the total
punishment.
There is a little bit of ambiguity, however, as to
what is meant by "total punishment" where the guideline
calculation calls for ~ife imprisonment, but Second Circuit
case law makes clear that in such a situation, the district
court is to stack or add up the maximum sentences for all
the counts.
In United States v. Evans, for example, 352 F.3d 65,
where the guideline calculation called for life
imprisonment but no count carried a life sentence, the
court held that the guideline range is 240 years, the
maximum sentences for all the counts added together.
Accordingly, here the guideline range is not life
imprisonment, but 150 years, the maximum sentences for each
of the 11 counts added together.
> is why this guy [not the hacker] is getting 25 years.
No, he is not getting 25 years. He is being sentenced for a crime whose statutory maximum punishment is 25 years, for an offense which, under the circumstances put forward by the prosecutors, has a base guideline sentence of about 5 years (which is also what prosecutors have said they will seek in sentencing.)
The defense is likely to, in sentencing, challenge the prosecution position on damages, which may result in the guideline range being substantially lower. There is, basically, zero chance of a sentence anywhere close to 25 years here.
> Had he been convicted, he would face 1 Million USD in fines as well as 35 years in prison.
That's a common misconception, largely due to the ridiculous way the DoJ writes its press releases.
Each Federal crime carries a range of possible prison time. What you actually get depends on a large number of factors, such as how much damage you caused, whether or not your crime was a drug crime, past criminal history, and many others.
When the DoJ writes press releases they just add up for each charge the maximum that it is theoretically possible for someone to get from the crime if they hit all the factors that push for longer sentences and none of the factors that push for shorter sentences.
So when they arrest you for crime X and write their press release, they don't actually tell what you, the first time offender who committed a mild instance of the crime with no aggravating factors and several mitigating factors is facing. No. They tell what the Voldemort or Moriarty or Hitler of whatever activity you were doing would face for crime X.
It is even worse, because they actually even exaggerate what Voldemort or Moriarty or Hitler would actually face, too! If a person is charged with multiple crimes from the same underlying act, say crimes X, Y, and Z, and is convicted of all of them the crimes are grouped together into one for sentencing, with the sentence for the group being the sentence you would have received for whichever for X, Y, or Z you would have gotten the longest sentence for if that was the only one you were convicted on.
Here's a good article on this in general: "Crime: Whale Sushi. Sentence: ELEVENTY MILLION YEARS." [1]
Here's a couple articles specifically on the Swartz charging.
This one covers the charges themselves: "The Criminal Charges Against Aaron Swartz (Part 1: The Law)" [2]
This one covers the prosecution, including a look at probably sentencing: "The Criminal Charges Against Aaron Swartz (Part 2: Prosecutorial Discretion)" [3]
> I expect that any criminal defendant, including Aaron, would read her initial statement as "they're going to put me in prison for 35 years".
Absolutely not. I've been shocked to see how many geeks - including Linus, do not seem to understand the concept of maximum penalties.
This is not an obscure lawyer technicality, this something you see in the papers every day. Journalists like to quote the "up to" numbers because they sound dramatic, and as a functioning member of society you need to know what that means and doesn't mean.
Maximum penalties set an upper bound on sentencing based on the crimes you are charged with, to prevent abuses. The high maximum penalties in this case probably means the laws are overly broad, but say very little about what the actual sentence will be. Moreover, I do not think the items he was charged have a minimum sentence - he could have been found guilty, and still gotten off with a slap on the wrist.
He didn't get 20 years, that's just the maximum permitted penalty for the crime he committed. The article title cites it as clickbait.
It's rather irritating. The law was made with a flexible range of punishments to permit the judge of any particular case to use discretion when determining an appropriate punishment. The maximum permitted is thus rather high. So now every article written about the subject lazily cites "up to 20 years", and thus everyone reading those articles gets the impression that he's actually likely to get 20 years for this incident.
It boggles the mind that it's even possible to manufacture such a charge. In most European countries you would get the highest sentence for the biggest crime, which although wouldn't be "accurate" either, it's a whole lot closer to what the punishment should be than stacking the sentences up.
And please spare me the "but he would never get this sentence anyway!" argument. If you were in his position and the government would tell you you're risking 80 years in prison unless you fully cooperated with it, you'd shit your pants, too, and you'd probably give up any rights you have just to not risk getting anywhere close to that sentence, or you would even settle and plead guilty to avoid that.
> Now you're being dishonest. The 6-month sentence was a plea deal he declined. It was a 35-50 year sentence if he fought and lost all charges
No, it was not a 35-50 year sentence. That's the theoretical sentence one could get for those same crimes if all the sentence enhancing factors that can apply do apply. Repeat offender, part of organized crime, massive monetary damage, drugs involved, things like that. Swartz didn't have any of those factors.
Here's an article on how DoJ press releases ridiculously exaggerate potential sentences [1].
If the prosecution has been able to prove everything they alleged and the judge decided to make an example of Swartz it might have been up to 7 years, but that is unlikely. Swartz's attorney said that if they had gone to trial and lost he thought it was unlikely that Swartz would get any jail time.
But even if you don't read those blog posts, consider this - the reported sentences are the maximum possible under the statute. From there, you would apply contextual circumstances - what the actual circumstances of the crime were, criminal history, admission of guilt, likelihood of recidivism, danger to society, whatever else the judge might find important, and adjust the sentence. Unless you think the hacker has undoubtedly committed the most egregious hacking crime, then he's not getting the maximum sentence.
And is the outcome for the rape perpetrators "blatantly wrong"? I don't really know the specifics of the case. Just quickly reading this CNN report - http://edition.cnn.com/2013/03/17/justice/ohio-steubenville-... - you can find out they're minors, they were remorseful, the rape was not violent, and most importantly, jail was not the only punishment they received - they were put on the sex offenders registry, which will most likely ruin their chances at having a decent life.
>Legal details aside, my question was more about whether it's morally right to sentence someone to eighteen years for the crimes described in the article?
Posting child porn and death threats? Yeah, that's worth 18 years.
But that is in the law. I think most people understand there's usually a big gap between the threatened sentence and the subsequent actual sentence in the event of a conviction.
People are objecting to the law as it is written and as it is abused by the government to make these indictments, in this case actually achieving conviction:
"Each of the two substantive counts carry a maximum penalty of 10 years in prison, three years of supervised release and a fine of $250,000. The conspiracy count carries a maximum penalty of five years in prison, three years of supervised release and a fine of $250,000."
> Sentencing guidelines for his crime was 0-12 months.
There's obviously plenty of dispute between where particular situations fall on the guidelines, but his own lawyers argued that he should get 12-18 months (plus other penalties), as a downward deviation from 27 years calculated under the guidelines. [0]
So, I'm curious how you arrived at a guideline sentence of 0-12 months. That would seem to imply Shkreli’s lawyers were grossly incompetent.
Unless apparently it is from a group criticizing the government. As we see in the article, that's the real crime.
Read it again, or better yet read the linked Reuters article, which RWR just re-wrote and sexed-up. There is no causal connection made between the call for increased sentence maximums and criticism of the government. The only connection made is that the two things are mentioned in the same article.
The idea that you've come away with is not based in fact, but in poor reporting.
Does this mean someone could, in theory, go to prison for linking meatspin? Only half joking, when read literally it certainly seems that's a possible interpretation.
https://www.popehat.com/2013/02/05/crime-whale-sushi-sentenc...
For another, because the guidelines are pretty specific in this case --- that 2B1.1 crimes are charged according to --- well, here's the wording from the guidelines: "the applicable base offense level is determined by the count of conviction that provides the highest statutory maximum term of imprisonment.". So "3x20" seems off the table.
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