Petition To Fire Aaron Swartz’ Prosecutor Reaches Goal

In the federal system, broad classes of crimes ("murder", "robbery", "wire fraud") have been assigned maximum sentences. For example, under no conditions can a sentence for wire fraud exceed 20 years (you get to the theoretical max of 35 in this case by adding the other charges, but they in the case everything would likely be folded into wire fraud on sentencing because all of the charges were based on the same conduct).

But most defendants convicted of wire fraud (even by a jury) don't serve 20 years. In fact, many first-time offenders don't serve anywhere close to that -- it's usually under a year.

Instead, the Federal Sentencing Guidelines [1] are a mostly-mandatory (there are constitutional reasons why judges are allowed to depart from the Guidelines, but it's rare and requires justification) system to calculate a range that a defendant will actually serve following a jury conviction.

Here, wire fraud is a "level 7" offense.[2] That offense level can be adjusted upward or downward based on other facts of the crime (e.g., was stock fraud involved? add 4). Assuming that Orrin Kerr was right and the total loss was $5,000 or less, there would be no adjustments and so Aaron's offense level would be 7.

Take that to the sentencing chart[3] and you can calculate that if Aaron had no priors he would be in criminal history category I and have an offense level of 7, which would be a sentence of 4-10 months. That's unpleasant, but it's a far cry from being "likely ... to get 35 years."

In fact, if you look at the sentencing chart, the only way for a first-time offender to have a Guidelines range of 35 years is to be above an offense level of 40. It takes serious work to get there: even a wire fraud of more than $300,000,000 in damages won't get you to that offense level. To get an offense level of 40, you're looking at first degree murder.

Familiarize yourself with the sentencing guidelines and you can see what was actually likely. A judge _could_ depart from the guidelines, but sentences significantly above the guidelines for a first-time offender are all but guaranteed to be struck down on appeal.

To take another example of the difference between maximum and actual sentences: the maximum sentence for murder in many states is death, but not everyone convicted of murder gets the death penalty.

[1] http://www.ussc.gov/Guidelines/2012_Guidelines/

[2] http://www.ussc.gov/Guidelines/2011_Guidelines/Manual_HTML/2...

[3] http://www.ussc.gov/Guidelines/2012_Guidelines/Manual_HTML/5...

Edit: Incidentally, the prosecutor is constitutionally _required_ to inform defendant of the full statutory maximum sentence, even if it's not realistic in a particular case. Failing to do so can be grounds for reversal of a plea or conviction. That doesn't mean the prosecutor has to tell the media, but he/she must tell the defendant.

That petition is a flawed and bloody flag that many seem willing to follow for the moment. The question is, is it possible to take the momentary outrage at this one prosecutor and turn it into a forceful pressure for reform of a system that is deeply and badly broken.

But this particular prosecutor was just a bully, right? Who had it out for Aaron out of personal hate, perhaps the Illuminati are involved also?

The only other reasoning is she was just doing her job and prosecuting a man who broke the actual law, and showed traits of an activist who could be a repeat offender, and was trying to deter him from getting into more serious trouble in the future.

A suspended sentence and a felony doesn't seem too bad if she was deterring him from something that could see him in jail 10 years with a plea bargain.

If these numbers are really all just meaningless and in "reality" he was really only looking at...a year? why is it that nobody, even sources like Lessig, seem to be saying this.