The Aaron Swartz Prosecution & Plea Bargaining(techdirt.com)
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The Aaron Swartz Prosecution & Plea Bargaining
http://www.techdirt.com/articles/20130117/02090421710/carmen-ortiz-releases-totally-bogus-statement-concerning-aaron-swartz-prosecution.shtml
6 comments
Plea bargains are weird when used as a weapon to intimidate someone.
There's something vaguely similar with people (at least in the UK) wrongly convicted and sent to prison. To qualify for early release they have to atone for their crime, which means accepting guilt and feeling remorse. But you cannot feel guilt nor remorse for a crime which you did not commit, and so they don't get early release. "Say you did it; do the time; you'll be out soon enough."
See also Japanese police and courts - suspects are held for much longer than in the UK; they're bullied and intimidated; and once things go to trial there's a > 90% conviction rate.
Here's a 24 minute BBC radio documentary about forced confession in Japan:
(http://downloads.bbc.co.uk/podcasts/worldservice/docarchive/...)
Sometimes they have multiple confessors to a single crime.
There's something vaguely similar with people (at least in the UK) wrongly convicted and sent to prison. To qualify for early release they have to atone for their crime, which means accepting guilt and feeling remorse. But you cannot feel guilt nor remorse for a crime which you did not commit, and so they don't get early release. "Say you did it; do the time; you'll be out soon enough."
See also Japanese police and courts - suspects are held for much longer than in the UK; they're bullied and intimidated; and once things go to trial there's a > 90% conviction rate.
Here's a 24 minute BBC radio documentary about forced confession in Japan:
(http://downloads.bbc.co.uk/podcasts/worldservice/docarchive/...)
Sometimes they have multiple confessors to a single crime.
Makes a very good point. And it is exactly the same reason why torture is illegal: a sufficiently scary threat will make anybody confess of anything.
The plea system is institutionalized torture.
The plea system is institutionalized torture.
As I've been finding myself thinking lately, US lawmakers and prosecutors need to re-read Beccaria's Of Crimes And Punishments. After its publication in 1764, the framers of the US Constitution were persuaded by its reasoning to amend the Constitution to include a prohibition on "excessive fines" and "cruel and unusual punishments".
Someone please explain to me how the threat of 50 years in federal prison and a million dollars in fines for downloading a bunch of academic papers can be considered to be anything other than "excessive" or "cruel and unusual".
Someone please explain to me how the threat of 50 years in federal prison and a million dollars in fines for downloading a bunch of academic papers can be considered to be anything other than "excessive" or "cruel and unusual".
I truly doubt that Aaron really thought that 50 or even 35 years was a realistic sentence to be honest. Mitnick was charged with wire fraud and illegal possession of computer files and 23 other charges and did 5 years and change. All other hackers that have been convicted by the US have done from months to 4 years, and most have even gotten the supervised release with no computer use null.
Also I really don't see the cruel and unusual here. It's the same procedure that everyone else gets. He should have taken this opportunity to help shape a movement for the change of CFAA and ITERA, enter the list of "elite hackers" that have been wronged by their country (for a great PR boost nonetheless), and bring to the spotlight his main cause of information liberation. He probably didn't take that route and opted for suicide because he was depressed or had some mental issue that was aggravated (but not caused by, I make the distinction) because of the pressure of his conviction and the existing (though very low) possibility that he might actually do hard time.
Don't get me wrong. I'm on Aaron's side, but all the fear mongering and hyperbole lately is unbecoming. We as a community are right now grasping at straws trying to make Carmen Ortiz as this horrible monster, when she was basically just a woman doing her job. She's not Charles Manson. Let's battle the CFAA and try to get things to change instead of focusing on a little woman who will most probably never suffer any repercussion for this, and seriously it's doubtful that she deserves any either.
Also I really don't see the cruel and unusual here. It's the same procedure that everyone else gets. He should have taken this opportunity to help shape a movement for the change of CFAA and ITERA, enter the list of "elite hackers" that have been wronged by their country (for a great PR boost nonetheless), and bring to the spotlight his main cause of information liberation. He probably didn't take that route and opted for suicide because he was depressed or had some mental issue that was aggravated (but not caused by, I make the distinction) because of the pressure of his conviction and the existing (though very low) possibility that he might actually do hard time.
Don't get me wrong. I'm on Aaron's side, but all the fear mongering and hyperbole lately is unbecoming. We as a community are right now grasping at straws trying to make Carmen Ortiz as this horrible monster, when she was basically just a woman doing her job. She's not Charles Manson. Let's battle the CFAA and try to get things to change instead of focusing on a little woman who will most probably never suffer any repercussion for this, and seriously it's doubtful that she deserves any either.
> It's the same procedure that everyone else gets.
That was also true of torture, flogging, stocks, breaking on the wheel, burning at the stake, the heretic's fork, knee splitters, the rack, thumbscrews, and the other various sadistic forms of punishment that every European civilization routinely used on its prisoners before they were condemned as barbaric and banned.
They were not regarded as "cruel and unusual" because they were uncommon, but because they went against contemporary ideas of fairness, civility and efficacy as legal tools.
I would argue that the threat of 35 or 50 years in a federal prison for a victimless act of civil disobedience is similarly "cruel and unusual" against today's ideas of fairness, civility and efficacy.
That was also true of torture, flogging, stocks, breaking on the wheel, burning at the stake, the heretic's fork, knee splitters, the rack, thumbscrews, and the other various sadistic forms of punishment that every European civilization routinely used on its prisoners before they were condemned as barbaric and banned.
They were not regarded as "cruel and unusual" because they were uncommon, but because they went against contemporary ideas of fairness, civility and efficacy as legal tools.
I would argue that the threat of 35 or 50 years in a federal prison for a victimless act of civil disobedience is similarly "cruel and unusual" against today's ideas of fairness, civility and efficacy.
My point is that he was not going to serve 50 nor 35 years. There is a lot of precedent already regarding "cyber crimes", and in most of them the served time is but a fraction of the maximum penalty. This happens each and every day and is the reason that plea bargains, judges, and juries exist.
On another point, you mentioned a plethora of violent punishments, which the topic at hand isn't. First it wasn't a punishment yet, second it wasn't violent, third it isn't unusual at all as it's the same process used for almost every criminal trial specially in an accusatory trial, and fourth cruelty is in the eye of the beholder. On this last point I'd like to make one distinction: cruelty is mostly referred to in two different contexts: 1) Physical pain: in which case there was none to speak of here, and 2) Disregard for the suffering of others (irregardless of physical pain): in which case she is both crueler than you and me because she prosecuted a bright young man with all means available to him to the point of having an influence in his death, and as cruel as both of us because we've all been in a position in which we have not cared about the suffering of another human being, either because you're (not directed to you, just trying to make a point here, don't take offense) not interested in middle eastern politics and international conflict, or because I didn't want to give my last dollar to that poor homeless man on the corner with arthritis.
On another point, you mentioned a plethora of violent punishments, which the topic at hand isn't. First it wasn't a punishment yet, second it wasn't violent, third it isn't unusual at all as it's the same process used for almost every criminal trial specially in an accusatory trial, and fourth cruelty is in the eye of the beholder. On this last point I'd like to make one distinction: cruelty is mostly referred to in two different contexts: 1) Physical pain: in which case there was none to speak of here, and 2) Disregard for the suffering of others (irregardless of physical pain): in which case she is both crueler than you and me because she prosecuted a bright young man with all means available to him to the point of having an influence in his death, and as cruel as both of us because we've all been in a position in which we have not cared about the suffering of another human being, either because you're (not directed to you, just trying to make a point here, don't take offense) not interested in middle eastern politics and international conflict, or because I didn't want to give my last dollar to that poor homeless man on the corner with arthritis.
> My point is that he was not going to serve 50 nor 35 years.
If he pleaded guilty, he was offered a high likelihood of serving only a short prison time.
I will set aside my contention that even a day of time in a federal prison is disproportionate for what amounts to a TOS violation, and instead focus on the fact that a short prison term would only come with a guilty plea.
The prosecutor used the threat of 35-50 years in prison to get Aaron to accept a guilty plea. If he chose to plead not guilty and attempt to defend himself, it would cost well over a million dollars in legal fees, and if he were found guilty anyway, the judge would be strongly predisposed to make an example of him by giving him a very long, punitive sentence.
A prosecutor forcing someone to admit guilt by threatening a life-destroying cruel and unusual punishment if they do not admit it - why, that is the very essence of using torture to extract a confession!
If he pleaded guilty, he was offered a high likelihood of serving only a short prison time.
I will set aside my contention that even a day of time in a federal prison is disproportionate for what amounts to a TOS violation, and instead focus on the fact that a short prison term would only come with a guilty plea.
The prosecutor used the threat of 35-50 years in prison to get Aaron to accept a guilty plea. If he chose to plead not guilty and attempt to defend himself, it would cost well over a million dollars in legal fees, and if he were found guilty anyway, the judge would be strongly predisposed to make an example of him by giving him a very long, punitive sentence.
A prosecutor forcing someone to admit guilt by threatening a life-destroying cruel and unusual punishment if they do not admit it - why, that is the very essence of using torture to extract a confession!
In my opinion, it's unconscionable to imprison people for nonviolent crimes.
> We as a community are right now grasping at straws trying to make Carmen Ortiz as this horrible monster, when she was basically just a woman doing her job.
Isn't her job to pursue justice? Nothing about this strikes me as just.
> We as a community are right now grasping at straws trying to make Carmen Ortiz as this horrible monster, when she was basically just a woman doing her job.
Isn't her job to pursue justice? Nothing about this strikes me as just.
That's a very slippery slope to walk on slippery shoes. Say someone breaks into your neighbors house and steals 10k worth of stuff. Oh wait, he shouldn't go to jail because it was a non violent crime. So he doesn't go to jail and has to pay restitution. Now he's pushed for money so your house is next, and this time you catch the thief. Who's to say someone that is willing to break the law and steal from you is not willing to hurt you to not get caught?
> Isn't her job to pursue justice? Nothing about this strikes me as just.
Her job is to pursue justice within the boundaries of stablished laws, which technically and pragmatically Aaron did break. She didn't create the CFAA and it's modifications via the Patriot Act and the ITERA. That is what we should be focusing on, not some witch hunt directed to a person who most invariably was just performing her job duties bound by the law she claims to uphold.
> Isn't her job to pursue justice? Nothing about this strikes me as just.
Her job is to pursue justice within the boundaries of stablished laws, which technically and pragmatically Aaron did break. She didn't create the CFAA and it's modifications via the Patriot Act and the ITERA. That is what we should be focusing on, not some witch hunt directed to a person who most invariably was just performing her job duties bound by the law she claims to uphold.
> Say someone breaks into your neighbors house and steals 10k worth of stuff.
I consider crimes of violence to be the use of aggressive force against a person or their property. After some research, this appears to disagree with the generally accepted definition, so feel free to reread my comment with this in mind.
> Her job is to pursue justice within the boundaries of stablished laws, which technically and pragmatically Aaron did break.
The "just following orders" defense. I reject such a notion. If "just following orders" or "just prosecuting within the boundaries of the law" leads one to perform or support unethical actions, then one should refuse to follow those orders or prosecute those laws.
> That is what we should be focusing on, not some witch hunt
While I am all for the repeal of the CFAA, I do not think that it is unreasonable to seek justice against someone for abusing the justice system (torturous use of plea bargaining).
I consider crimes of violence to be the use of aggressive force against a person or their property. After some research, this appears to disagree with the generally accepted definition, so feel free to reread my comment with this in mind.
> Her job is to pursue justice within the boundaries of stablished laws, which technically and pragmatically Aaron did break.
The "just following orders" defense. I reject such a notion. If "just following orders" or "just prosecuting within the boundaries of the law" leads one to perform or support unethical actions, then one should refuse to follow those orders or prosecute those laws.
> That is what we should be focusing on, not some witch hunt
While I am all for the repeal of the CFAA, I do not think that it is unreasonable to seek justice against someone for abusing the justice system (torturous use of plea bargaining).
And someone please explain to me where the ~1.5 million dollars needed to defend oneself in a federal court actually end up.
Mostly lawyers.
Which shouldn't be necessary.
But they are because there is no way for normal people to fully understand the law.
How can we even be expected not to break it regularly?
I see lawyers as some sort of bad kind of software developers but for humans.
They write the shittiest code possible (in my view on purpose) such that each time it can be interpreted slightly differently depending on who's being accused.
This code is very hard to refactor, it calls various routines from libraries that have been long abandoned yet amended in other routines or functions that 'decorate' and change behavior.
And then when there's something to understand or change they pretend lots of money to give you their interpretation and or provide changes.
Law's are not bad intrinsically but it should be taught in school and be as simple as possible, or in other words, it should use the KISS principle.
I see lawyers as some sort of bad kind of software developers but for humans.
They write the shittiest code possible (in my view on purpose) such that each time it can be interpreted slightly differently depending on who's being accused.
This code is very hard to refactor, it calls various routines from libraries that have been long abandoned yet amended in other routines or functions that 'decorate' and change behavior.
And then when there's something to understand or change they pretend lots of money to give you their interpretation and or provide changes.
Law's are not bad intrinsically but it should be taught in school and be as simple as possible, or in other words, it should use the KISS principle.
Far be it for me to come to the defence of lawyers, but there are some mitigating circumstances that should be familiar to software developers:
* Lots of laws look crufty to casual observers, but the reason is that they have been amended again and again and again over the years to accommodate various edge cases.
* Laws are a structured, formal attempt to model human bevaviour, which is messy, fuzzy and unpredictable except at the statistical level. A clear, simple law may not be the best way to govern unclear, complex agents in a complex system.
The temptation to throw out our laws and replace them with something simple and clear is dangerously close to the Second System Syndrome to which well-meaning software developers often fall prey.
* Lots of laws look crufty to casual observers, but the reason is that they have been amended again and again and again over the years to accommodate various edge cases.
* Laws are a structured, formal attempt to model human bevaviour, which is messy, fuzzy and unpredictable except at the statistical level. A clear, simple law may not be the best way to govern unclear, complex agents in a complex system.
The temptation to throw out our laws and replace them with something simple and clear is dangerously close to the Second System Syndrome to which well-meaning software developers often fall prey.
When the code gets cranky, its time to refactor.
Piling shit on top of it just makes it worst.
I'm not talking about NIHS or rewrites, I'm talking about refactoring.
And lots of edge cases and special things are not a good thing in law or software I think.
I'm not talking about NIHS or rewrites, I'm talking about refactoring.
And lots of edge cases and special things are not a good thing in law or software I think.
I don't disagree with you on the need for careful refactoring of our legal code. In fact, a few years ago I wrote an essay on this very topic:
http://quandyfactory.com/blog/30/software_as_a_model_for_gov...
I do believe we need to exercise caution, balance and good judgment, and that most of the time, careful refactoring is more prudent and effective than throwing out the existing code and starting from scratch.
http://quandyfactory.com/blog/30/software_as_a_model_for_gov...
I do believe we need to exercise caution, balance and good judgment, and that most of the time, careful refactoring is more prudent and effective than throwing out the existing code and starting from scratch.
Agreed.
Lawyers don't write the "code" here, and that's a very important distinction.
With the caveat that a huge proportion of lawmakers are lawyers.
There staff lawyers are the ones actually writing the legislation.
I agree it is cruel and unusual. The way it is now there is a strong incentive for innocent people to accept a plea bargain. How could this be remedied? Perhaps there should be a limit on the difference in the years charged and years that can be accepted for a plea?
> The plea system is institutionalized torture.
That is going to far. The plea system seems to be loaded with problems, but if you don't want to make a plea bargain you can still simply go to court. Which is what you'd be doing without a plea system anyway. A sufficiently scary threat won't make you confess, it will make you choose the court route.
That is going to far. The plea system seems to be loaded with problems, but if you don't want to make a plea bargain you can still simply go to court. Which is what you'd be doing without a plea system anyway. A sufficiently scary threat won't make you confess, it will make you choose the court route.
> The plea system seems to be loaded with problems, but if you don't want to make a plea bargain you can still simply go to court. Which is what you'd be doing without a plea system anyway.
The implication here is that things would be the same without a plea system. I disagree. I think that if people regularly faced the kind of sentences that they are threatened with under the plea system, there would be political upheaval. 50 years for trespassing and downloading files? It's absurd.
The plea system as it stands is simply a means for prosecutors to acquire more convictions, and it is absolutely unacceptable. They are blatantly gaming the system, so the system needs to be changed.
The implication here is that things would be the same without a plea system. I disagree. I think that if people regularly faced the kind of sentences that they are threatened with under the plea system, there would be political upheaval. 50 years for trespassing and downloading files? It's absurd.
The plea system as it stands is simply a means for prosecutors to acquire more convictions, and it is absolutely unacceptable. They are blatantly gaming the system, so the system needs to be changed.
First of all, I did not make an implication that things would be exactly the same without plea bargain. I was merely responding to the completely over the top claim that a plea bargain somehow constitutes "institutionalized torture" that the parent made.
That said, I don't think abolishing plea bargain would necessarily lower the maximum penalty for a given felony (which is what the 50 years is). There is a great number of things that come under the name "wire fraud", some of which deserve years in prison and some of which don't. That is why the law gives a range for the possible penalty and it is up to the judge to pick the right number in that range. There is little reason to believe a judge would have opted for the upper bound of the range in this case.
The problem I see with plea bargains (from an outside perspective, we don't have plea bargains where I live), is that they allow one to sidestep an honest and public trial in favor of such a bargain, thereby replacing justice by backroom deals. Sometimes this works in the favor of the prosecution, and sometimes the defendant gets of lightly.
That said, I don't think abolishing plea bargain would necessarily lower the maximum penalty for a given felony (which is what the 50 years is). There is a great number of things that come under the name "wire fraud", some of which deserve years in prison and some of which don't. That is why the law gives a range for the possible penalty and it is up to the judge to pick the right number in that range. There is little reason to believe a judge would have opted for the upper bound of the range in this case.
The problem I see with plea bargains (from an outside perspective, we don't have plea bargains where I live), is that they allow one to sidestep an honest and public trial in favor of such a bargain, thereby replacing justice by backroom deals. Sometimes this works in the favor of the prosecution, and sometimes the defendant gets of lightly.
Coincidentally, Aaron Swartz himself describes exactly his prosecutor's behavior:
http://www.aaronsw.com/weblog/semmelweis
http://www.aaronsw.com/weblog/semmelweis
This is a pretty good paper comparing United States plea bargaining to Germany.
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?artic...
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?artic...
It's been linked and discussed here http://news.ycombinator.com/item?id=5059044 Please keep in mind that the paper is about as old as I am (34 years) and some things have changed, most notably that germany now has a plea bargaining system, though it's quite a bit different from the american one. See http://www.concurringopinions.com/archives/2009/07/german-bu... for an overview (linked from the discussion).
"In this hypothetical scenario, those 10 years in prison would, practically speaking, have consisted of six months for his original crime (the sentence Ortiz actually thought he deserved) plus a nine-and-a-half-year prison term for exercising his constitutional right to a trial."