Though I'd like to see Oritz fired, and think she's deserving of it, the effort to get her fired is blinding us to a bigger problem and a proper solution. The system was broken long before Oritz and Swartz, but it wasn't until it affected someone we like that we noticed. But we're in a bubble, and the vast majority of Americans do not care who Aaron Swartz is, will not be affected by this tragedy like we were, and in general think that prosecutors need all the tools they can get to put "bad" people in prison.
The American people love tough-on-crime policies, and it's not possible to publicly shame a public official, or get her fired, for doing something that most of the public supports. If we want to make change, we need to move the needle on the public's perception of crime. That's a hard problem, and it's not as easy as signing a petition, but it's a problem we'll never be able to solve if we're blinded by trying to exact vengeance on a prosecutor.
Edited to add: if Oritz were likely to be fired, then I agree it would be a great starting point for a larger movement. But my point is that changing public opinion of tough-on-crime policies is a prerequisite for getting Oritz fired. A prosecutor is not going to be fired for engaging in normal conduct that is loved by the public, even if the outcome in this case was tragic.
Even though getting officials fired is not your preferred method to help jumpstart reform there are no reasons for you to discourage others of doing so.
If you think you have a better axis of attack on this problem, I beg you, please lead an effort on that axis.
If we waited for a consensus on the best manner to proceed before doing anything, noting would ever get done.
To make a comparison relevant to this community, imagine that HN was used to shame others starting businesses that don't use the best consensus methods or ideas. How many good startups would never see the day?
With startups, more than 90% of attempts fail. I'm pretty sure that attempts at changing the system don't have better odds. If we reduce the efforts to a single attempt, there is 90% chances it will fail.
Also, consider that special interests have probably built legal and political walls in the most obvious paths of change. It's worth trying all fronts to find a weakness especially the newer little known ones.
> Even though getting officials fired is not your preferred method to help jumpstart reform there are no reasons for you to discourage others of doing so.
Yes there are, if you think that it's not going to work and that the attempt is discouraging people from looking for solutions that will.
You could make the same comment if someone attempted to prove P!=NP, and someone else said "your proof has a mistake here, and by the way, people have been trying your general approach for decades and it's never yielded anything".
(I do, however, agree that attempts to get officials fired are more likely to succeed than attempts to prove P!=NP.)
Even though getting officials fired is not your preferred method to help jumpstart reform there are no reasons for you to discourage others of doing so.
Exactly. Bottom-up action is strongest when supported by a diversity of tactics. Alice may not like Bob's methodology, and Bob may not like Alice's, but when they expend their energy discouraging each other from doing something they believe in, neither have a shot at advancing their shared cause. Gatekeepers are the undeclared allies of power.
Put your energy into action you believe in, and let the chips fall where they may.
Crowdsourcing the destruction of the career of an out-of-control prosecutor is a repeatable process, and, as Internet forums gain mass, a process that will get easier to apply.
In other words, this is the public perception of crime on the move. You can see this in other areas of discourse, like cannabis legalization, getting rid of red light cameras that have been shown to increase collisions, etc.
Crowds are fickle and fatigue easily. We become indifferent to things which previously affronted us. It is a natural coping mechanism to prevent the monopolization of our limited attention spans.
For example, gun violence has been a constant thing in the US. The crowds get tired of hearing about it and the drive for legislation goes no where. However, when something out of the "ordinary" happens, such as the grievous Newtown murders, the attention of the crowd has been once again achieved. Politicians know this and the ones pushing legislation know they need to act fast before fatigue and indifference kick in, and the ones against the legislation know it's a waiting game.
My point is that the process of crowds demanding the removal of an out of control prosecutor isn't going to get easier (aka more likely to happen) just because it happened this time.
We have a limited window to act based on the attention of the crowd that has resulted form Aaron's suicide. I believe when people say something to the effect of "your missing the point" when removing a specific prosecutor, they are trying to get this point across.
In our limited window of action, we can remove someone specific, or find away to address the more general problem of prosecutorial overreach while we still have the mic. Ideally that more general approach would not depend on the continual outrage of the crowds.
Would that I had more than one upvote to give you.
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.
Yea, because it's really great that we have a system where we vote for some person who disappears for two years and doesn't do anything that represents what anyone who for them wanted.
either way it doesn't make a difference if the politician are not accountable and the public is not informed.
What we have now, practically globally, is manipulated oligarchy dressed as democracy.
Here's the thing about petitions: they aren't for convincing the people they're addressed to. They're for rallying the signers. Publicly writing your name down next to a cause triggers several psychological reactions resulting in your being more committed to the cause. Studies have shown that getting someone to sign a petition increases the probability that they will later take further action toward the cause in question.
So they are quite effective. They're just also a little sneaky.
You make lots of good points, especially by stating that getting Oritz fired should not be the end-goal. A larger effort will be needed to start swaying the general population's opinion on tough-on-crime policies.
There are many ways to approach the problem, but every resolution needs a beginning. That is how I view the Oritz initiative: a beginning. I'm sure that other government workers are taking notice and will likely adjust their behavior in the future, even if we can't quantify it. In that sense we've already made progress.
I only wish this effort could have begun under less tragic circumstances.
He could only get the 6 month (rather than 35 years) prison sentence by waiving his right to a fair trial. So exercising his constitutionally guaranteed right would result in a seventy-fold increase in his worst-case outcome.
> He could only get the 6 month (rather than 35 years) prison sentence by waiving his right to a fair trial.
If he willingly engaged in a jury trial and somehow still got convicted, with a strict judge, and a jury that hates him, and an incompetent defense, he still wouldn't get anything approaching a 35-year sentence.
Is it really too much to ask to not use hyperbole for matters as serious as this? You could just as well be saying that the taxpayers are paying for Sandra Fluke to have sex.
Please, please, I'm begging you all: By setting up an echo chamber and inventing your own "facts" and then taking action based on that made-up dream world, you're just as wrong as "the other side".
> he still wouldn't get anything approaching a 35-year sentence.
You don't know that.
As tptacek and an actual computer criminal defense lawyer points out:
Granick: Important to remember much lower burden on prosecution at sentencing; “reasonable” loss claims on “preponderance of evidence”. Net-net: If charged with 13 felonies, you can’t lose on ANY, because even if acquitted on 12, they strike back at sentencing.
From this I conclude the game-theoretic payoff matrix is the message: don't bet on a fair trial, even if you're completely innocent. Prisoner's Dilemma indeed.
You are. You're skipping the most important part of the criminal process: the trial.
* don't bet on a fair trial, even if you're completely innocent. *
Hyperbole, and dangerous exaggeration. The "beyond a reasonable doubt" standard is a very high standard. I've won jury trials where the evidence all supported the prosecution's case (seriously, I had no evidence) but was not sufficient to reach this standard. Federal judges are even stricter at forcing federal prosecutors to satisfy this standard--they'll frequently dismiss the case without even letting the jury deliberate.
If you think jury trials are patently unfair, you need to actually go down to a courtroom and watch the jury trials. You'll learn a lot, and you'll discover that the justice system is not even remotely as lopsided as you think it is...once you get to the trial stage. (But yes, it's definitely lopsided in favor of the prosecution at every stage before trial.
But I didn't say "jury trials are patently unfair" or even that trials in general are impossible to win.
Aaron was weighing a guaranteed felony record and 6 months in prison against 0 (if acquitted on all 13 charges) to 50 years at some unknowable probability.
Clearly the prosecutor wanted him to think that invoking his right to a trial was a "bad bet".
>he still wouldn't get anything approaching a 35-year sentence.
What difference do you think this makes? Even a 1 year sentence will utterly destroy your life. And that's just your life outside. God forbid you get raped or something during that time.
He could have either taken 6 months and the charge, or the maximum sentence. Note: This happens every single day for all types of crimes all around the US.
That's the most terrible thing about it - it happens every day that people are bullied into surrendering their right to fair trial, and nobody cares. With current system, the right for fair trial is mainly for somebody that could afford to spend a million dollar on it or that is famous enough to have public support and donations. For average Joe, once you got charged with a crime, your life is ruined in any case, whatever jury says. And given that prosecutors have much more knowledge of how juries work than you - getting a bargain may be your only chance to be free in next 10 years or so.
I don't find the "other top HN post right now" regarding this, but as I understand it [paraphrasing], nobody told him "hey, you'll probably get 6 months", they only told him "hmm, you can reduce it to 25 years. maybe. if you beg."
"If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1
million."
If they're happy to use the figure when seeking media attention, they have to accept its use when they're in trouble.
Except he wasn't facing 35 years in prison...If he wanted to take the charge he could have, but he was facing 6 months if he wanted to look out for his best interests. The comments here keep making it seem that he was going to realistically do 30+ years in prison which is obviously incorrect.
he wasn't accepting admitting to being a felon so it was very likely he was in fact going to get 35 years in prison for a TOS violation.
Also, the practice of "admit you're guilty, else go to prison for (life|35 years)" is a common practice of totalitarian states used to crush dissenters and activists.
A guilty verdict from a jury is not an automatic maximum sentence. The mostly-mandatory Federal Sentencing Guidelines would have called for an actual sentence of 4-10 months in this case.
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.
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.
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.
> 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.
Because it goes in opposition to the worldview they're trying to push...? Everyone has a bias, you, me, Dr. Lessig, aaronsw, the prosecutors, EVERYONE.
It's like when the music/movie industry tries to claim that an illegally copied media file costs them hundreds of thousands in damages.
In this case you could theoretically get to 35+ by taking up all the charges, handing down sequential sentences (as opposed to the more-normal concurrent sentences), and somehow making all of those individual sentences go to the upper range of the permitted scale.
I and a few others have been trying to point out that 35 years in prison was never an actual option for some days now but I think it's kind of gotten lost in the storm...
> I and a few others have been trying to point out that 35 years in prison was never an actual option for some days now but I think it's kind of gotten lost in the storm...
here's what would help. If you are in fact a criminal law attorney and know these things via practice, or if you can point us all to some links of well respected criminal attorneys, without a stake in the case, on the record saying "it's very unlikely he would get more than four years".
Yes, we are all aware of the plea bargain. There have been several discussions about it already; I think most of us are disturbed by the implications of the practice.
I agree with what you are saying but I think many who would sign this petition don't want systematic legal changes for human rights, they want law enforcement to have a free hand to pressure with plea bargaining, profiling, torture, oppressing certain minorities, and generally police state powers to protect "us". What they want is preferential protections to better differentiate us vs. them and for "us" not to be caught in an oppressive legal system. Someone might identify with Aaron but not with a Troy Davis, who was executed in Texas based on false evidence. So maybe a petition makes more sense for such people.
There's also the issue that classifying Ortiz's handling of this case as "prosecutorial abuse" is a subjective opinion that there is a notable segment of the population that will see it as anything but.
Obama could ask her to resign then there would be no need for public justification. I doubt it'll happen though. Doing so wouldn't score enough political points, given it's not a sufficiently mainstream issue, to make it worth Obama's while.
It's way worse than that. Obama's track record on abusing DoJ power against citizens is well established. Indefinite detention. Whistleblower prosecutions. Bradley Manning. The list is not short.
It'd be great to see the president forced to disown Ortiz; perhaps it'd make the rest of the DoJ afraid he wouldn't back them up on their similar adventures. Realistically, though, this is not (yet) a large political threat to Obama.
Yeah, Obama's shiny happy image has enabled the Democrats to get through legislation that would have created an uproar had it been pushed through during the Bush admin. Sad.
The American people love tough-on-crime policies, and it's not possible to publicly shame a public official, or get her fired, for doing something that most of the public supports. If we want to make change, we need to move the needle on the public's perception of crime. That's a hard problem, and it's not as easy as signing a petition, but it's a problem we'll never be able to solve if we're blinded by trying to exact vengeance on a prosecutor.
Edited to add: if Oritz were likely to be fired, then I agree it would be a great starting point for a larger movement. But my point is that changing public opinion of tough-on-crime policies is a prerequisite for getting Oritz fired. A prosecutor is not going to be fired for engaging in normal conduct that is loved by the public, even if the outcome in this case was tragic.