For years I've been grumbling ineffectually about how the media gets criminal justice stories wrong. In particular, I've repeatedly complained that the media distorts stories about federal criminal prosecutions by reporting the statutory maximum sentence that defendants face without noting that the actual remotely plausible sentence they face is usually much lower.
Here's a case in point, and here's why you should care.
Yesterday a federal jury in Sacramento convicted former Reuters journalist Matthew Keys under the extraordinarily flexible, antiquated, and confusing Computer Fraud and Abuse Act. The feds have long relied upon the ambiguity of that statute to pursue whomever they want to pursue. Keys was convicted on the theory that he provided LA Times login information to hackers who made nonsensical edits to an article on the Times' web site.
Although some media outlets reported the result accurately, many emphasized the statutory maximum sentence Keys could face. CNN: "Keys, 28, faces up to 25 years in prison when he is sentenced on January 20, 2016." "The Washington Post — "the end result may mean 25 years in prison." Huffington Post: "Keys Faces Up To 25 Years In Prison." Newsweek: "he faces up to 25 years in prison." Wired: "Keys faces a possible sentence of up to 25 years."
But there's no plausible chance that Keys will get anything like 25 years. The court will use the United States Sentencing Guidelines as a starting point — a recommended sentence — and absent any bizarre factors not present here, will impose a sentence close to that recommendation or below it. Based on the government's outlandish claim that the LA Times hack caused almost a million dollars in damages — more on that in a moment — Keys will likely face a recommended sentencing range of (by my calculation) 51-63 months as a starting point for sentencing arguments,1 and while the court may go considerably lower, it's very unlikely the court will go much higher. Keys' attorneys will get a chance to dispute these calculations, and may convince the court to reject the government's loss calculation (driving the recommended sentence lower) or otherwise adjust it, so that the judge ultimately sentences him based on a different recommended range. But there is effectively no chance that the court will go years higher — a sentence substantially above the guideline range is vulnerable to attack on appeal, and doesn't happen in cases like this.2 That calculation of 51 to 63 months recommended range is consistent with the government's comment that it will seek less than five years.
I can see why Keys would think that this is annoying pedantry, but it's not. Leave aside, for the moment, that the media is misinforming the public about the criminal justice system. Forget the fact-distorting discussions this always creates: "how can you get 25 years for hacking when murderers get out in 10?" The inaccurate reporting is a problem because it conceals a grave problem: the vast power of federal prosecutors to drive the sentence federal defendants get.
Keys gave hackers the ability to deface an LA Times online article for 40 minutes with silly gibberish. The government is arguing that caused $929,977.00 in damages. The jurisdictional cut-off for the charged crime is only $5,000. What part of a response to a hack gets counted as damages, and what doesn't? The line is obscure and flexible. Evidence here suggested that the Times initially calculated damages at $3,800, and that its agents tried to inflate the numbers to make it more likely that the perpetrators would be prosecuted federally. The government can take a very low-key approach and argue that only a low, easily provable number represented damages — or it can aggressively pursue an extravagant theory. If the judge accepts the government's stance — and judges usually do — it makes a very substantial difference in the sentence that the defendant faces. In this case, if the government were only arguing (let's say) $6,000 in damages, Keys would be facing a recommended sentencing range of 15-21 months instead of 51-63 months.3 Those years make quite a difference in somebody's life, and in the decision of whether to go to trial or not. The government can — and routinely does — say to defendants "if you accept this plea we'll stipulate that the damages are only $6,000, but if you go to trial, we're going to argue that they are almost a million dollars."
When journalists report the statutory maximum sentence, they help promote a misleading narrative that prosecutors merely charge cases and judges determine the sentence. In fact, prosecutors have extraordinary power to determine a defendant's likely sentence based on what they choose to charge and what facts they choose to argue. Bad reporting conceals that. Stop it.
Edited to add: Dan Nguyen helpfully points out that in its opposition to Keys' motion to suppress, the government asserted that the labor cost of investigating and responding to the hack was 333 hours worth less than $18,000, but implied that figure didn't include other costs that no doubt inform its nearly-a-million figure. Again, it's about the government's discretion to argue vastly disparate positions that drive a sentence.
- The applicable Guideline is 2B1.1. The base offense level is 6, the government's ludicrous damages allegation yields 14 more points under (b)(1)(H), and 4 more levels for the type of computer crime under (b)(17)(A)(ii), for a total offense level of 24. He gets no credit for acceptance of responsibility because he took the case to trial. Assuming he has no criminal record he's in Criminal History Category I. Offense level 24, Criminal History Category I yields a recommended sentence range of 51-63 months. The offense level could go up a few points if the government convinces the judge that he obstructed justice in the course of the case or that he led or organized other people, but that seems unlikely. ▲
- Judges occasionally go way over the guidelines in cases involving child pornography or violence to vulnerable people. ▲
- The calculation is the same as in footnote 1, above, except that between $5,000 and $10,000 yields an increase of 4 levels instead of 14 levels, so the final offense level is 14 instead of 24. ▲
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