Kerr says later on: "decades in jail would have been extreme overkill". So apparently he was willing to at least set some limits without even knowing the answer to his question. A little earlier he says: "I’ll defer here to the people who knew Swartz best, with whatever they think the right answer is. Would probation have been enough? A month of home confinement? Jail time?" Which also sets some bounds on what he thought was reasonable.
So I don't know if Kerr really meant for his question to be taken at face value. OTOH, he does seem to consider it important that the punishment be sufficient to cause the person to switch from illegal to legal means for achieving his goals. So he doesn't seem fully consistent on this point.
I don't see him as inconsistent. I just think that he didn't state his full position in a single place.
My understanding is that his full position follows from two principles:
1. The only point of punishing Aaron is to deter him, so there is no reason to punish him more than what would deter him.
2. There is a reasonable limit to what is a fair punishment for Aaron's actions, by no means should Aaron be punished more than that.
The result is that the appropriate punishment is the minimum of the two. Given that Aaron could have been deterred by punishment that is far less than #2 provides, the limiting consideration in his case is #1. But even for a much more difficult to deter person, by no means is decades acceptable for #2.
3. The punishment must be enough to deter him--more precisely, to ensure that he switches from illegal to legal means for achieving his goals.
The whole point is that #3 might well be incompatible with #1 and #2, if Aaron was sufficiently committed to his goals and legal means did not offer enough of a possibility of achieving them (which is what appeared to be the case). Obviously if you leave out #3 there's no problem; but Kerr specifically included #3 and talked like he thought it was important.
I did not miss that. The #3 that you discuss follows as a logical consequence of #1 and #2 if #2 exceeds #1. Which it did in this case. But the statement that #1 should be the principle under which Aaron should be sentenced does NOT logically imply that it is in all cases that right applicable principle.
Huh? Either I'm missing something or your logic is in error. To briefly restate: let P = the amount of punishment imposed; let D = the minimum amount of punishment sufficient to deter; let R = the "reasonable limit" on the amount of punishment.
#1 says: not P > D.
#2 says: P <= R.
#3 says: P >= D.
There are no logical implications between any pair of the above.
#1 and #3 combined force P = D. But that is incompatible with #2 if D > R. To put it back into English: if the only amount of punishment that will deter is greater than the "reasonable limit", there is no way to satisfy all the principles.
#1 actually is The only point of punishing Aaron is to deter him which means both that there is no point in punishing Aaron beyond the level of deterrence, and that as long as increased punishment increases deterrence, there is a point in increasing punishment.
The point being that deterrence is not a binary yes/no. Even if tossing Aaron in jail will not stop him, tossing him in jail for 6 years delays his next offense more than tossing him in jail for 5 years, so that would be an argument for increased punishment.
Therefore #1 as I meant it is both an argument for an absolute upper limit on punishment, AND an argument for as much punishment as possible as long as you are within that limit. Therefore if #2 limits punishment below the absolute maximum from #1, you can still satisfy all of the principles at once.
That's true, but it doesn't change the argument. Just change D to the minimum punishment that will provide an acceptable level of deterrence. The same logic goes through. (Technically, yes, you now can allow P >= D instead of forcing P = D, but that doesn't matter if D > R.)
Therefore if #2 limits punishment below the absolute maximum from #1, you can still satisfy all of the principles at once.
Not if #2 limits punishment below the minimum that will provide a acceptable level of deterrence. See above.
Where are you pulling your notion of "an acceptable level of deterrence" from?
If your willingness to persevere exceeds the willingness of society to punish you, then at some point society will be pushed to think hard about the issue. That's the whole point of civil disobedience. But those conversations need to happen in the realm of politics - not the courts.
In short, the courts should not try to preemptively block all possibility of civil disobedience by subjecting people a sufficient pain point to prevent it happening. Judges need to stay within the limits set by maximum sentences and sentencing guidelines, even if the judges believe that this punishment is not enough to deter the unwelcome action.
If your willingness to persevere exceeds the willingness of society to punish you
This is exactly the situation that I don't think Kerr's article addresses. He appears to assume that it will always be possible to deter civil disobedience with some punishment that is within reasonable bounds. The question by gnosis that started this whole subthread was basically, what if that assumption is not true? There are only two options at that point:
(1) The punishment goes beyond reasonable bounds, because deterrence is given priority over being reasonable; or
(2) The punishment remains reasonable, so it doesn't deter, so the issue keeps coming up; and at some point, as you note, it will end up having to be addressed politically.
Judges need to stay within the limits set by maximum sentences and sentencing guidelines, even if the judges believe that this punishment is not enough to deter the unwelcome action.
You are basically trying to say that #1 should not be pursued, and I agree with you. However, note that staying within the maximum sentencing limits is different from staying within "reasonable" limits on punishment. In the Aaron Swartz case, the maximum sentence allowed by the law and the sentencing guidelines was way beyond reasonable by almost anybody's estimation.
I agree with most of what you say, but with two quibbles.
The punishments suggested by sentencing guidelines encapsulate what precedent says is "reasonable limits". Thus the sentencing guidelines in some sense are the definition of what our society thinks of as reasonable limits.
That said, you go on to say that that sentence is way beyond reasonable in almost anybody's estimation. If your circle contains lots of people who understand technology, that is obviously true of those you know. If your circle expands to include random lawyers, judges, politicians, and the uneducated public, there will be lots of people who think those limits are reasonable. That is how they came to be what they are.
Well, Orin Kerr is at least one lawyer who appears to think that the current sentencing limits are unreasonable, at least in some cases. :-) (More precisely, he thinks the current sentencing guidelines are too coarse; they don't differentiate well between different types of cases that deserve very different guidelines.)
But you're right, different subgroups of the population can have very different ideas of what is reasonable.
Given that he, like many of us, lived his entire life on the internet, simply taking away all computer and internet access for 12 months should be enough to deter him. During those 12 months, if he violates that probationary periods he could be automatically hit with 6 months of jail time.
For many of us, the possibility of being deprived the tool that gives most of us the power we have should be enough to deter.
You're forgetting supervised release. This is mandatory even after a short custodial sentence and could be for a period of up to three years. During this time he could not have computer access; this is a standard condition. It was a violation of this supervised release condition that sent the Egyptian national who made a scandalous film about Islam back to prison.
Let's say no punishment would deter Swartz. Would that justify a sentence of life in prison?