A Dangerous Bargain

Reflecting on the Aaron Swartz case, Tim Lee argues that plea bargaining is a “corrupt practice”:

If Ortiz thought Swartz only deserved to spend 6 months in jail, why did she charge him with crimes carrying a maximum penalty of 50 years? It’s a common way of gaining leverage during plea bargaining. Had Swartz chosen to plead not guilty, the offer of six months in jail would have evaporated. Upon conviction, prosecutors likely would have sought the maximum penalty available under the law. And while the judge would have been unlikely to sentence him to the full 50 years, it’s not hard to imagine him being sentenced to 10 years.

Orin Kerr gets into the weeds on sentencing:

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.