The guideline range for even one count could be quite high, since the guideline for many of the counts is 2B1.1, which is calculated by the amount of loss. (Statutory index here, go to 18 USC 1030 and 18 USC 1343 on pages 10 and 11.) The higher the loss, the higher the guideline range.

Because the Government was arguing for a really high amount of loss to JStor , and because of the various enhancements under 2B1.1, Aaron's range for even one count would likely be several years, and certainly above 6 months. According to Marty Weinberg, Aaron's second attorney who was negotiating a deal with the Government, his guideline range was around 5 years (half a decade he says):

Martin Weinberg, Swartz's attorney until Fall 2012, says the problem is the sentencing guidelines that hovered over his deceased client's head.

"I think it's a more systemic problem that has plagued the criminal justice system since the 1980s ... Congress took the historic power away from judges to individualize sentencing without concern for minimum mandatory sentencing or in this case federal sentencing guidelines that create a coercive club that has lead to over 95 percent of federal defendants pleading guilty," Weinberg said.

Weinberg argues federal guidelines for sentencing in a case such as Swartz's aren't appropriate because they depend on financial losses.

"Well the Aaron Swartz case was a paradigm. Greed, monetary motives were not in any respect Aaron's objective in doing what he is alleged to have done," Weinberg said. "Instead, he had political and moral agenda, yet was subject to these coercive and even draconian guidelines that threatened to, after trial if imposed, to extinguish half a decade of his life warehoused in a federal jail."

..."Because of the guidelines, the government felt like they reduced it by 90 percent and gave me a plea offer, which was less than six months, when I believe passionately that Aaron Swartz was a person who should've received at worst probation for the crimes that he was facing," Weinberg said.

Carmen Ortiz said:

This office sought an appropriate sentence that matched the alleged conduct - a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge.

I think the Government was going to acquiesce in a variance from the guidelines if he plead, not that the guidelines weren't high. There's no indication she was seeking an upward departure or variance from the guidelines that I've seen.

I agree with much of what Anonymous says about the need for change in Congress and our federal sentencing guidelines. And especially with cutting back on the discretion of prosecutors.

While I can't support their infiltration of government websites or disclosing of restricted government documents, I do think many of their arguments are valid.

Congress often dictates when passing a new law with a greater penalty that the Sentencing Commission increase guidelines for that offense. It is Congress that establishes mandatory minimums. The Sentencing Commission takes its cue from Congress. And ultimately, it's the Justice Department that decides what charges to bring, what plea bargain to offer, and what onerous conditions attach to that offer (e.g. waiver of appeal rights) or to a rejection of the offer (superseding indictment with more charges, recidivist enhancement doubling the mandatory minimum for a person with a prior drug felony, even if it was 20 years ago etc.)