Regarding legal costs, Lessig has made up the $1MM figure apparently based on nothing, or (at best) his intuition. He also didn't say the defense would cost $1MM. He said Aaron could have feared it would cost that much.

As for sentencing, in cases like this, the sentences for the different charges would almost always run concurrently. We're talking a few years of imprisonment upon actual conviction, and reportedly the government offered to settle. Aaron could very likely have gotten a suspended sentence ("probation") upon settling. The judge in the case is known for harsh sentencing and favoring the government, but even then, it's hard to predict what he'd have gotten even if he had been convicted. My best guess, as a techie lawyer, is 12-18 months. The rhetoric here is all just Lessig's attempt to get people like us riled up, and I'm tired of that.

Not that I'm defending the government either. I don't like the law here. I'm asking only for some perspective. A rich or at least middle-class white kid knowingly and purposely engaged in an act of civil disobedience and got caught. If he'd looked different, the state trespassing charge probably wouldn't even have been dropped.

It's quite easy to calculate the likely sentence. The Federal Sentencing Guidelines provide for a base level of 6, plus an 18 step increase for fraud between $2,500,000 and $7,000,000. The sentencing range at this level assuming no criminal history is 57-71 months. Expect supervised release (no computers) for three years. The fine would be up to the sentencing judge within statutory limits. The government estimated the value of the JStor documents at $5 million. Even if the government's estimate was exaggerated, the documents were worth something--and this figure would drive the sentence to be imposed. The judge could also depart upward based on aggravating factors such as PACER and a lack of remorse. Swartz faced with no good choices. When he did not take the offered plea, they superseded and racheted up the counts. The number of counts doesn't really matter for Guidelines purposes but there is always the risk that the sentencing judge could impose the sentences for each count consecutively.

$1MM is not a fantastical figure. Not every lawyer can mount an adequate defense in a federal criminal case and the ones that can cost a lot of money.

As for sentencing, it doesn't matter. He shouldn't have been charged in the first place and it shouldn't be policy to throw an absurd amount of charges at someone knowing that only a few will stick.

As for his socioeconomic status, I am also a white middle class kid who likes computers and so I identify with him. That's why I care more about this issue. That seems to be your point, but it's just a basic reality of human psychology and it's not revelatory or significant. It doesn't change the fact that what happened to him is wrong.

Remember, Lessig's point was that Aaron SHOULD have been punished but that the sentence was disproportionate.

And we can rise above our prejudices and instinctive "identifications." I don't accept that we have to follow our instinctive "psychology" (which is quite more nuanced than you are suggesting) instead of something more logical.

Rising above our prejudices and instinctive "identifications" would be acknowledging that maybe there's something wrong with the drug laws that incarcerate 1 in 3 poor black men. Not denying that there's also something wrong with threatening 35 years in prison for downloading publicly-funded research papers. In other words, don't invalidate one injustice simply because we can't fix all injustices.

Punishment could be being banned from the MIT network in future.

Punishment could be banned from computer use for x days.

Punishment could be a severe monetary punishment.