At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.
The absolute dishonesty of this statement has only further convinced me that firing this political appointee to prevent her from further harming citizens is the only appropriate action for our government to take.
This 35 year (or 50 year) thing mentioned in many blogs might be questionable. To be frank I feel myself a bit fooled by this information, reading yesterday that 6 month have been proposed to Swartz. When talking about things as serious as death, we seem to assume that every information is depicted really carefully, but this is far from being true.
The additional charges added later (after this press release) are the source of the 50 year estimate.
6 months was offered IF he agreed to plead guilty. If he went to trial, the prosecutors claim in the above press release that he faced 35 years; in private communications they have claimed they intended to press for 7 years.
There are exceptions, but most of the blog articles I have read on the subject have been extremely well sourced and well researched.
"We're not saying its going to happen to you, but these other three businesses have burned to the ground. If you give us 10%, we can make sure it doesn't happen to you."
At no point in this sentence did I say "If you do not pay us 10% we will burn down your business." However prosecutions have successfully argued, and any reasonable person would agree, that the first sentence is a threat, is coercive, and is criminal. Making a statement about what "could" happen can be interpreted (often correctly) as a threat. Making a statement about what could happen when the person making it is instrumental, even a required agent, in the future event, is most certainly evidence of a threat. Making such a statement while offering a lesser harm (or sentence) is most certainly a threat.
You may post as many replies on this thread that "threat" doesn't mean what we think it means but the law, common sense, and understanding of English, proves you wrong.
"I didn't intend to burn down their business, judge. I just pointed out that it could happen. Whether or not I would have intended to do so after they decided not to accept my plea-bargain^H^H^H pay my protection fee is immaterial to the case. You are conflating the two, a statement of intent verses a statement of fact. The fact is I did not burn down their business and you have no record of my saying that I intended to."
You state: "You may post as many replies on this thread that "threat" doesn't mean what we think it means but the law, common sense, and understanding of English, proves you wrong." however...
From United States v. Kelner (1975) -
"... the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution..."
The "threat" made by the prosecutor in Swartz's case wouldn't meet the conditions of unequivocal, unconditional, or immediate thereby rendering it not a threat. A layman may feel that they were threatened or that someone else would feel threatened by the statement in the press release, but the law does not consider it one.
I think you should read what that case was about (and that the US won and on appeal).
If I go on TV and make threats, then sure, the prosecution would have to meet that standard. If I meet you in dark alley with what you believe to be a gun (but aren't sure) and I make implied remarks about what might happen to you if you get caught wearing that watch, and maybe you can leave it with me and I'll be sure to return it to you when you're safe, then I'm going to jail. I don't have to say "Give me that watch or I will shoot you". If I imply that sleeping with me might get you that promotion, even without saying so, and I'm in a position to make it happen, then I'm guilty of sexual harassment. I don't have to say "If you fuck me I'll promote you".
Lets be clear. I'm not expecting Ortiz to be drawn up on extortion or racketeering charges. The examples were to demonstrate that a "true threat" does not require the defendant to say "I intend to X on date Y" for it to be taken as a threat or proof of intent.
I did read the case, and I do understand that the circumstances are different. The piece I wanted to draw attention to is that there are criterion for what constitutes a threat.
The examples you have provided in both of your posts include ominous characters and "dark alleys." More importantly, both of those situations involve an agent telling the other person they should take some action or there will be some consequence, implying that if the action is not taken, then there is a risk of the consequence. In the press release by the prosecutor, there was simply a statement of consequence, not a prescribed set of choices or a consequence if Swartz didn't take a certain action. There may have been threatening outside of the press release, but those facts are still murky and it is outside of the scope of what I am talking about.
If you are picking a bone with plea bargaining and how it is used to threaten people and coerce them into guilty pleas, then that is fine, I'm not arguing with you there - just with the perception that the prosecutor's statement was threatening.
Threat: "expression of intent to harm"=. Yes, I would say that it does.[1]
Stating "Charges X, Y, and Z could result in 35 years" is not a threat. Stating "Charges X, Y, and Z could technically result in 35 years, and I will seek at least 7 years" is a threat of 7 years. Stating "I am charging you with X, Y, and Z which could result in 35 years." and putting that out in a press release... that is threatening 35 years.
This. The press release simply stated the maximum penalty for the charges. A "threat" would have been a statement by the prosecutor saying what they intended to press for. Example - if someone were to state "I have a gun that could shoot you, leading to injury or death" that is a statement of fact, whereas if they said "I have a gun and I intend/will shoot you, leading to your injury or death" then they are making a threat. In this case the statement of fact was "If convicted on these charges, SWARTZ faces up to 35 years in prison..." the use of "IF" is very important.
Legal jargon is very specific and it may seem overly analytic to draw such a fine line, but that is exactly how law works and such specific distinctions must be drawn in order to understand exactly what is being said.
> Why are you hearing that Swartz faced 35 or 50 years if it was not true? First, government press releases like to trumpet the maximum theoretical numbers. Authors of the press releases will just count up the crimes and the add up the theoretical maximum punishments while largely or completely ignoring the reality of the likely much lower sentence. The practice is generally justified by its possible general deterrent value: perhaps word of the high punishment faced in theory will get to others who might commit the crime and will scare them away. And unfortunately, uninformed reporters who are new to the crime beat sometimes pick up that number and report it as truth. A lot of people repeat it, as they figure it must be right if it was in the news. And some people who know better but want you to have a particular view of the case repeat it, too. But don’t be fooled. Actual sentences are usually way way off of the cumulative maximum punishments.
It is a lawyer's statement. Absolutely true (probably) but completely beside the point because what they would seek in the event of a trial was still massively inappropriate (years of jail time).
Except that the statement is true. Even the worst case of actual sentencing threats that have come out so far have been in the range of 7 years if the case went to trial, not 35 or 50.
The absolute dishonesty of this statement has only further convinced me that firing this political appointee to prevent her from further harming citizens is the only appropriate action for our government to take.