Reality Winner has agreed to serve 63 months in federal prison for leaking a classified document about Russian election meddling to the press.
Winner, a former National Security Agency contractor who worked near Augusta, Georgia, has been sitting in jail since last June, when she was caught passing along an NSA report detailing how Russian hackers tried to infiltrate U.S. voter registration systems prior to the 2016 presidential election. The Intercept published a news story based on the report, and Winner was tracked down as the source.
Winner was in a tough bind for two reasons.
First, she was charged under the Espionage Act. Although that law was intended to catch spies who give information to enemy governments, it does not have any exceptions for whistleblowing or divulging information in the public interest. That is why Edward Snowden fled to Russia.
Second, Winner had been denied bail. Although she was clearly no threat to others, judges accepted the argument that she might be a flight risk because of what happened with Snowden, even though she had handed over her passport and had agreed to electronic monitoring.
The fact that Winner has been behind bars since her arrest may help explain why she accepted a deal that is pretty harsh given the circumstances. Trevor Timm notes at The Intercept that Winner's sentence is the harshest so far for a media leak from a civilian. Had she been found guilty, she would have faced a potential sentence of up to 10 years, but possibly less.
Winner will end up serving two fewer years than Chelsea Manning, who leaked a whole lot more classified information than Winner did. Manning, who originally got 35 years, is free only because of President Barack Obama commuted her sentence.
A study published in the February issue of the American Economic Review found that defendants who remained in jail before trial were more likely to plead guilty and more likely to be found guilty than defendants who were free. They also tended to receive longer sentences. The report's authors attributed the differences partly to the "strengthening of defendants' bargaining positions before trial." Defendants who are not in jail can meet and talk with their attorneys whenever they want, not just when the jail permits it, and they don't have to endure the harshness of life behind bars while they wait for the wheels of justice to turn, ever so slowly.
These disparate outcomes are part of the argument for reforming pretrial detention so fewer defendants are kept behind bars, as I explain in the cover story of Reason's August-September issue, which will hit mailboxes and newsstands soon.
Could Winner have gotten a better deal if judges had allowed her to remain free while she negotiated with prosecutors? John Kiriakou, a former CIA analyst, was indicted under the Espionage Act in 2012 for revealing classified information about the CIA's role in waterboarding prisoners. He was released on bail and eventually agreed to a plea deal that included a 30-month sentence, half of what Winner faces.