About twenty years ago, when I was about as old as The Simpsons are now, I was asked to decide whether a man would ever leave federal prison alive.
I was a rookie federal prosecutor, and the guy was one of my defendants. He robbed banks to support his heroin habit. He brandished a gun, and was caught with it when he was arrested after the fifth bank. His fate was sealed by the decision to prosecute him federally. The feds charged him with five counts of bank robbery and five counts of carrying a firearm in the course of a federal crime. (Bank robbery is a federal crime when the victim bank is insured by the FDIC.) That carrying charge — under title 18, United States Code, section 924(c) — carried a mandatory minimum term of five years for the first charge, and twenty-five years consecutive for each subsequent charge, to be added on top of any sentence for the underlying crime.
I'm not bothered by the concept that a heroin addict who goes on an armed bank robbing spree should get a substantial sentence to incapacitate him. But I am troubled that 26-year-old me — callow, righteous, and stupid in a highly educated way — was asked to recommend whether he'd get at least 30 years, or at least 55, or at least 80. It was my case, and so I was asked to recommend to the Chief of the Criminal Division how many counts of Section 924(c) the guy had to plead to.
I recommended two — the cautious and midline answer — resulting in a thirty-year mandatory minimum sentence, plus a guideline sentence for bank robbery. Could I have gotten away with one, resulting in a five-year mandatory minimum, or three, resulting in a 55-year mandatory minimum? Probably. I can be pretty persuasive.
In the federal system, the guy will do at least 85% of his sentence. I could check how much time he has left, but I don't remember his name.
Should I, at 26, have had that sort of power? Should even a veteran prosecutor have it?
Few journalists understand federal sentencing, and as a consequence few citizens understand it. The ridiculously complex federal sentencing guidelines are a constant source of confusion, and this confusion helps obscure the vast power prosecutors have to guide the sentence by choosing the charges to which defendants may plead.
Take the thoroughly despicable Hunter Moore, revenge pornographer and extortionist. He's signed a plea agreement committing to plead guilty to unauthorized access to computers and to aggravated identity theft. That's based on his participation in a scheme to hack into women's accounts and steal their intimate pictures using their misappropriated usernames. He's going to jail, and he ought to. But who ought to decide how long he spends there?
The federal judge who sentences him will have only limited power to determine his sentence, thanks to clever exercise of prosecutorial power. The extraordinarily versatile federal criminal code lets prosecutors guide the sentence by choosing what to charge and then what to offer as a plea deal. Here, in addition to the obvious charges (plain-vanilla conspiracy, and hacking under the rather vague and antiquated 18 U.S.C. section 1030), prosecutors cleverly charged him with seven counts of aggravated identity theft under 18 U.S.C. section 1028A, on the theory that Moore and his co-conspirator used the victims' misappropriated identity — their account usernames — to steal their pictures for profit.
That section carries a two-year mandatory minimum sentence. That effectively gave prosecutors the power to determine whether or not Hunter Moore would go to federal prison, by determining what guilty plea they offered him. For better or worse, Moore's plea agreement shows that the recommended sentence under the federal sentencing guidelines is quite lenient: the parties stipulate to start at an offense level of 8, which permits probation as a sentence. The government may well argue for multiple enhancements, but the likely range of recommended sentences is low. But the government exercised its power to make Moore plead to one count of aggravated identity theft, putting a mandatory-minimum two year floor on his sentence, on top of which the judge will impose the guideline sentence. Moore's quite fortunate that the aggravated identity theft statute is relatively lenient about mandatory minimums; it gives the judge discretion whether to make them consecutive when there are multiple counts. In other words, if the feds made Moore plead to five counts of aggravated identity theft, the mandatory minimum sentence would still be only two years. That's in sharp contrast with most mandatory minimums, like the one I was called upon to recommend twenty years ago.
Do I think Hunter Moore should do less than two years? No, absolutely not. I think he should do more.
Do I think federal prosecutors should have absolute discretion and power to determine whether or not people charged with crimes should do at least two years in federal prison, or get some other sentence the judge thinks is appropriate? No. That scares the hell out of me. Hunter Moore is not a sympathetic defendant, and the hacking in which he participated is clearly malicious and criminal. But the feds have stretched and distorted ambiguous federal computer statutes to prosecute the likes of Lori Drew (federally prosecuted for creating a fake MySpace account to mock her daughter's rival), Aaron Swartz (prosecuted for mass-downloading scholarly articles to make them free to all), or the troll Weev (prosecuted for guessing URLs correctly to demonstrate a serious flaw in AT&T's online security). Not all potential defendants are Hunter Moores.
Two two-year mandatory-minimum power is modest, compared to the power I exercised over that bank robber's life, and compared to the power routinely exercised over the lives of drug defendants. But the power to determine whether someone might get probation or home detention, or whether they must do two years in federal prison, is still mighty. As of now, as the Moore case illustrates, if you misuse someone else's username for profit, federal prosecutors will decide whether or not you go to jail for two years. The judge will decide how much time to tack onto that, but with respect to that two years, the judge is just along for the ride.
Why should we trust that power in the hands of the federal government? Why should we give that sort of power to people like me?
Last 5 posts by Ken White
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