If anything, I would think that the bail would indicate he's unlikely to receive the maximum sentence. I suspect that few do. That said, I am not a lawyer.

Edit: A bit about the United States Sentencing Guidelines, linked from the lwn thread: https://popehat.com/2013/02/05/crime-whale-sushi-sentence-el...

Yeah. On some level, I try to get people to read "he faces up to ..." as "he faces no more than ..."

Still though, a little disproportionate.

There is absolutely no chance that this person will serve 40 years in prison, or anything resembling that sentence. DOJ press releases add up the maximum possible sentence for the class of offense people are charged with. It's terribly misleading.

In reality, for a non-remunerative first-time offense, even of this severity, the guidelines suggest low single-digits.

There is too much risk built in to the sentencing though. He will basically be forced to take a plea of 10 years and hopefully get out in 5.

I would like to see a situation where the max penalty that can be issued by a judge can only exceed a plea offer by 20%.

He's not going to be offered 10 years. If he goes to trial and is convicted, he'll likely serve less than 5.

Once again: 40 years is not in fact a sentence that is available to the judge; the judge would have to discard the sentencing guidelines entirely, and that sentence would fall apart on appeal.

Further, there is simply no relationship between the number "40 years" and the guidelines. It's not like the DOJ is marking up the guideline sentence by X0%. They're instead using a ridiculous process to add the sentences for every count of a crime up, which is simply not how federal sentencing works.

This harsh bargaining was in part why Aaron Schwartz killed himself. The punishment doesn't fit the crime.

It's "Swartz". Not "Schwartz".

Swartz had the advice of some of the best attorneys in the field during his ordeal. Nobody doubts the stress of a federal prosecution contributed to his death. But nobody familiar with the case believes --- or believes that Swartz believed --- that he was facing a double-digit-years sentence. His own attorney, who advised him to take the case to trial, believed that if convicted on all counts, he might not even get a custodial sentence --- that his worst case would be a felony conviction with a probation sentence.

You can read the sentencing guidelines (they're public) and see why. First offense. Non-remunerative crime. Highly debatable damage. Reluctant, ambivalent victims.

So in 30 years the president will be giving clemency to a bunch of non-violent hackers we locked up during the "War on Cybercrime".

There actually was a "war on drugs", and while drug sentences are not the cause of mass incarceration (prison sentences are dominated by violent crimes, followed by property crimes), there are many tens of thousands of people in prison for drug offenses.

Are there even 100 people in prison for "cybercrime"?

Does "cybercrime", which includes credit card and identity theft, occur only rarely? Is that why almost nobody is in prison for it? No. The reason nobody is in prison for "cybercrime" is that despite what us message board nerds think, we are not in fact part of a persecuted class.

It is hard to understand the true magnitude of the war on drugs because it likely lead to sentence inflation of all crimes.

At this point people are being sentenced to decades for crimes they previously were sentenced to just years for.

The entire situation is disgusting.

This is widely believed but turns out to be false. The average length of prison stays may not have increased significantly at all in the last 50 years. Increased prison sentences are not the cause of mass incarceration.

What do you believe is the biggest factor that contributes to mass incarceration?

The best thing I've read on this, which is the Pfaff study on mass incarceration and the drug war, suggests that the biggest issue is that even as crime dropped steadily during the mid-late 1990s, prosecutors offices continued staffing up, and prosecutors themselves became more likely to file severe charges.

So the short answer is "prosecutorial discretion".

The longer answer might be something like this:

During the crime wave from the late 70s through the early 90s, the American public demanded increasingly aggressive prosecution of crime. Prosecutors offices staffed up in response to it. People were elected on promises of increasing funding both to police and to prosecutors. Prosecutors themselves were incentivized to file more cases, again due to the public mood.

The crime wave passed, but once set in motion, the systemic increase in prosecutions didn't stop: in large organizations, headcount, once obtained, is only released dearly. Managed business objectives (like expectations on percentage of offenders for whom prosecutors will charge with felonies), once established, are only with great effort ever changed.

And so that's where we're at now: a prosecutorial system calibrated to the crime levels and hysterical public mood of the late 1980s.

Very interesting. I have been paying attention, but I guess not well enough. That makes sense and falls along the same line of thinking as... you make what you measure.

Concurrent sentences do happen, especially when all the counts stem from one incident, though I'm unsure if they happen for federal crimes. (In that case assuming full conviction he'd serve each count at the same time, making it up to ten.)

They're obviously angling toward a plea, though.

Under the federal sentencing guidelines, a person charged with many counts of the same offense serves only the sentence associated with the most severe of those offenses; the sentences "group" by charge, and the grouping rules are part of the sentencing guidelines.

Although judges are not required to follow the USSG, and upward departures do happen; e.g. Dennis Hastert's structuring conviction. The DOJ is technically correct, but very misleading.

(I know you know this and that an upward departure from the Guidelines is very unlikely for this particular case--just stating for the record.)

Are you sure? The judge departed upwards from the prosecutor's recommended sentence, but did he exceed the guidelines? The class of charges Hastert was sentenced under include a sharp increase in offense level if the crime involves sexual exploitation of minors, easily enough to land you in zone D for a first offense.

From the transcript [1]:

"The government is recommending a guidelines sentence, meaning between zero and six months in jail... It's not sufficient to comply with the purposes of sentencing. It doesn't reflect the seriousness of the crime and the conduct surrounding it. It doesn't provide just punishment for the offense to give simply a guidelines sentence."

[1]: http://www.chicagotribune.com/news/nationworld/ct-pdf-transc...

The base offense level for structuring in the service of some other criminal act appears to be 8, and offenses connected with sexual exploitation of minors gain 6 offense levels; zone D starts at level 12 for first-time offenders.

It is as least as likely that I am wrong than that the reporting is wrong, but, there you go.

That's good to know. Basically concurrent with a slightly different technical approach.

While you were off murdering people you weren't really a threat to the US Government. The second you proved you could break into hardened computer systems, you became a direct threat to the US Government.

If the only thing stopping you from committing murder is fear of government punishment you might be a sociopath.