Crime: Whale Sushi. Sentence: ELEVENTY MILLION YEARS.

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37 Responses

  1. Dan Weber says:

    Thanks for this. I think we all know the case you're talking about, and things that move us away from sweeping emotional appeals are very helpful.

  2. Robert says:

    But the problem is that they shouldn't be facing any jail time AT ALL (for the original crime). This should strictly be a matter of a fine and that's it.

  3. Sabeletodo says:

    IANAL (I took the LSAT and creamed it, and my sister is a public defender), but I got into a slap fight with one over at Boing-Boing over this very issue. All he could say was AARON SWARTZ!!! OVERCHARGING!!! I said it was not about the whale meat as much it was about lying to the Feds and that with a plea down, the chef wouldn't be in a Club Fed for even a whole year. It sorta got lost in the "It's just a whale! No human harmed! Rapists get less time!!" background noise and anarcho-libertarian posturing. Glad to see somebody with credentials says approximately the same thing.

  4. Patrick says:

    Since Ken's busy, I'm just writing to thank Instapundit, Boing Boing, Volokh, Will Wheaton, John Scalzi, Something Awful, Mark Cuban, Radley Balko, Gawker, Deadspin, Ars Technica, Hot Air, Zero Hedge, and James Taranto at the Wall Street Journal's Best of the Web Today for all the links to this post. We hope your readers will stick around.

    Special thanks to Paul at the New York Times (you know who you are) and all the guys at Reddit who pushed this post to the front page. Keep rockin'.

  5. Ken says:

    It's cold and hurty when you make fun of me.

  6. David says:

    While the proper site is under (re)construction, you can have a look at the 2009-2010 guidelines manual here (via the wayback machine). (supplements here).

  7. Josh C says:

    What Robert said.

    Plus, as a restauranteer, this will be a death sentance. As a felon (assumption, because I really don't want to look up how crazy CA's whale laws are) you can't get a liquor license. Without a liquor license, you can't run a successful restaurant. This is a career-ender, even if being sent to jail and shaken down for legal fees were surmountable. (That's not a crack at defense lawyers, it's a crack at Feds taking 3 years to assemble a case. 'Speedy,' my ass.)

  8. Josh C says:

    Also, thank you for the education on sentencing guidelines.

    Sometimes, having someone explain complex matters so their easy to follow trivializes them; sometimes it just drives home how pro that someone is. This is definitely the latter.

  9. CourtneyLee says:

    This is why I read this blog: rationality. Also, if I'm ever in the position of getting questioned by police, I am going to shut my yap and ask to call my lawyer. That is a departure from how I thought before I started reading legal blogs, which was "I don't have anything to hide so I'll just answer their questions."

  10. Rich Rostrom says:

    What are the Zones, anyway? They appear to be ranges of sentence severity, but they overlap.

    "A" is 0-6 months. "B" is some mandatory minimum time up to a year.

    I note that if a first-timer incurs mandatory minimum time, it's four months – but for a repeat offender, it's one or two months (at lower offense levels, to be sure).

    I wonder – why do the rules exclude a 1- or 2- month mandatory minimum for Category I?

  11. Ken says:

    Rich: the Zones correspond to certain sentencing options. In Zone A the court can give straight probation. In Zone B the court can give probation so long as one month is imprisonment. IN Zone C the court can give a split sentence, where half is imprisonment and half is home detention. Zone D is all time.

  12. Ken says:

    Also, "mandatory minimum" refers to something else — a mandatory statutory minimum, imposed by a particular statute, like the federal drug laws.

  13. delurking says:

    Interesting position, Robert. Do you have some principle by which you judge whether certain crimes should be punishable by jail, or is it an "I know it when I see it" type of thing.
    I wonder what level you think the fine should be set at to sufficiently deter whaling? A bit of googling lists whale prices at $10k to $40k on the black market. Given the low odds of getting caught, $500K to $1M seems reasonable. Does it seem reasonable to you?

  14. ShelbyC says:

    What's the likelihood that they'll get a plea deal for quite a bit less? I see the guy who sold them the meat pled to a misdemeanor?

  15. David Josselyn says:

    This is intentional. Reports are after the worst-case scenario, as well as the simplest possible way to indicate the seriousness of the charge. Looking at the more complex actual sentencing guidelines doesn't address either of those requirements. The only way around that would be to publish some kind of average and strongly urge the media to use that.

  16. James Pollock says:

    Publicizing the max also puts pressure on the defendant to take that plea bargain, as all the defendants' friends and family start worrying about the 67-year sentence, and calling to sympathize.

  17. nathan says:

    How can whale meat have a market value in the USA? IIUC it's a crime to have it in the first place — that being the central point of the charges — , so there can't be a market in it.

  18. Shkspr says:

    Markets come in all sorts of colors.

  19. flip says:

    Thank you Ken for posting this. I never really thought about the claims of maximum sentencing in the media and this really opened my eyes.

  20. Mike says:

    I'm forced to wonder, if these folks were not pleading guilty, would the prosecutor's office be settling for these charges? I mean, if anyone else associated with the business was involved in some tangentially related crime, they could tack on a RICO charge which is enough to make almost anyone plead out.

  21. Another Woman says:

    Thank you. Another piece of the world makes (a bit) more sense now. I will remember to refer future mouth-frothers to this.

  22. Jross says:

    I'm totally guilty of this and thanks for the corrective. But, like they said over at BoingBoing, I wonder if reporting maximum sentences still has some value if that's what prosecutors are threatening during plea negotiations.

  23. Jo says:

    @Nathan: How can heroin have a market value in the USA? IIUC it's a crime to have it in the first place — that being the central point of the charges — , so there can't be a market in it.

    Try that one in court. Tell the judge I said it was alright.

  24. Dan Weber says:

    I wonder if reporting maximum sentences still has some value if that's what prosecutors are threatening during plea negotiations.

    Your lawyer (assuming you have a decent one, as Ken describes) will tell you what you are actually facing.

    Reporting the maximum does serve some useful societal function, in that in scares other people from doing the same crime. Whether this benefit is worth the various trade-offs is probably something that would take several books to fully discuss.

  25. En Passant says:

    Dan Weber wrote Feb 6, 2013 @9:23 am:

    Reporting the maximum does serve some useful societal function, in that in scares other people from doing the same crime. Whether this benefit is worth the various trade-offs is probably something that would take several books to fully discuss.

    I would add another potential benefit.

    Reporting the maximum sentence possible can cause public outrage, or at least a moment of tongue clucking, at today's legislative and prosecutorial tendencies to make every possible human act a criminal offense at the discretion of some ambitious prosecutor.

    I make no judgment on this particular case. But there are too damned many laws making too damned many crimes out of acts that most sane people would consider innocuous or even virtuous.

    Pick up a random bird feather you found on your own property and you might just be in felonious possession of a migratory bird part in violation of the Migratory Bird Act, 16 USC 703 et seq. If some federal prosecutor pandering for brownie points among "environmentalists" finds out about it, your life as you knew it is over.

    Publishing maximum sentences possible for charges can inform the public of how unjust many of our laws actually are.

  26. I'm sorry, you had me with the RuneQuest reference. :)

  27. AC says:

    I hear those media outlets are facing 50 years hard labor over their misreporting.

  28. Roscoe says:

    Ken, a post about the sentencing guidelines? Really?

    Picasso was reported to have said he could spit on a canvas and people would think it was great art. Is the point of this post that you can write about anything and we would still read it?

  29. nathan says:

    @jo, heroin is a controlled drug, isn't it? I presume there is therefore a market in it. Are you claiming whale meat is a controlled foodstuff?

  30. shg says:

    I just read Xeni Jardin's update. I do not think she gets it, even though she says she does. At least she's trying, which is more than most reporters who misinform can say.

  31. Jo says:

    @Nathan, it would seem to be a controlled foodstuff, given that people eat it and it's illegal to possess it. The chef didn't catch the whale himself, so he must have bought the meat from someone. A buyer and a seller make a market, n'est c'est pas?

  32. James Pollock says:

    "How can whale meat have a market value in the USA? IIUC it's a crime to have it in the first place — that being the central point of the charges — , so there can't be a market in it."

    It's more interesting than that. Congress' authority to make law on the subject at all probably rests on the interstate commerce clause of the Constitution. That is, Congress acts to foreclose any legal commerce in (commodity) on it's authority to regulate interstate commerce.
    One of the "be careful what you wish for" warnings is often appropriate when small-government types start agitating for sharp restrictions on commerce-clause authority… the controlled substances act rests not-so-firmly on a tortured reading of the commerce clause.

  33. MattS says:

    James Pollock ,

    "One of the "be careful what you wish for" warnings is often appropriate when small-government types start agitating for sharp restrictions on commerce-clause authority… the controlled substances act rests not-so-firmly on a tortured reading of the commerce clause."

    To us small-government types killing the controlled substances act as a consequence for agitating for more restrictive reading of the commerce clause is a feature not a bug.

    Prohibition was an absolute unmitigated failure with alcohol. 90 % of the violence of the gangster era can be directly laid at the feet of the supporters of prohibition. What makes you think drug prohibition has even an infinitesimal chance of being more successful.

  34. Kratoklastes says:

    @CourtneyLee – it's terrific that you've sloughed off the whole "if you've done nothing wrong, you have nothing to fear" trope: would that more people did so.

    My favourite riposte to that trope is a quote from Cardinal Richelieu: "Qu’on me donne six lignes de la main du plus honnête homme, j’y trouverai de quoi le faire pendre."

    If one were to give me six lines from the hand of the most honest man, I will find in it something to hang him.

    THAT should be the operative principle in all interactions with cops and prosecutors (that, and a firm understanding that the fuzz especially are permitted to lie to a suspect, and that prosecutors have almost unlimited indemnity for any misconduct… case in point: Harry Connick Sr).

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