Towards Learning From Losing Aaron Swartz: Part 2
cyberlaw.stanford.edu
cyberlaw.stanford.edu
And:
It is also true that in my criminal law career, I found the U.S. Attorney's office in the District of Massachusetts particularly immoral. In one case, I was told that if my client failed to enter a plea that day, the prosecutor would supercede and add embarrassing pornography charges to my client's computer crime case based on materials allegedly found on his hard drive but never disclosed to me in discovery. Similarly, that office sought to imprison a man for collecting user emails to compile a list of best-selling books, despite the fact that the email collection would have uncontroverably have been lawful had it occurred a nanosecond later. (U.S. v Councilman).
So, as Granick explains it, it's worse even than we've been led to believe so far.
If you're charged with 13 felonies in federal court and manage to get yourself acquitted from twelve of them --- meaning, in essence, that 92% of the prosecution's claims about you were false --- not only do those acquittals not damage the credibility of the prosecution at sentencing, but because sentencing is based in part on "relevant behavior" not heard at trial, those 12 acquitted charges can come back on you.
But wait, there's more! Sentencing for fraud charges in general and computer fraud in particular is based on a lower burden of proof for the prosecution than conviction is. In sentencing, the prosecution need only establish a "reasonable" estimate of losses, backed by a "preponderance of the evidence". The prosecution is thus free to look at the "costs" of dealing with all 13 of the charges and to come up with some plausible story to turn a few months into years.
This is batshit. If you've committed a felony with a computer, you committed a felony with a computer; the idea that we should scale sentencing based on whether you punched the number "8" or "2048" into the for() loop that got you caught is insane. If crime victims need recourse to make themselves whole for the damages a felony caused, that's what civil courts are for.
My favorite memory of this is the time that a judge and the public defender were openly mocking a defendant in the court room.
However, if he plead guilty to a felony, he could have been sentenced to as many as 5 years, despite the government's agreement not to argue for me. Each additional conviction would increase the cap by 5 years, though the guidelines calculation would remain the same. No wonder he didn't want to plead to 13 felonies.
Technically, this is correct, since federal sentencing laws limit the judge's discretion to raise or lower prison sentences. They actually have a table indexed by "points" which the judge must use to determine the length of the sentence. Thus, in order for the prosecution to honor a plea for 6-7 months, it would necessarily have entailed that all of the (other) charges either be dropped or reduced to their misdemeanor equivalents. (Note that if you read her CV, she hasn't handled a case in the federal courts since the sentencing guidelines were issued.)
http://cyberlaw.stanford.edu/about/people/jennifer-granick
Are you serious? I am so over the know-it-all snark on HN.
Seriously: find any DMS-100-hacking member of the Masters of Deception from back in the 1990s and ask them to name a lawyer. Jennifer Granick's is the only name you'll hear from more than one person. She represented Kevin Poulson, for fuck's sake.
It seems very unlikely to me that her analysis is less informed than yours. I think you've made a mistake in your analysis here.
I grumble about this too frequently already, so I'll stop here, but (re)cite two books I think make particularly succinct critiques: The Collapse of American Criminal Justice by Christopher Stuntz and Adversarial Legalism by Robert Kagan. In a nutshell, both argue that the fact-finding role of trial courts (civil as well as criminal) is seriously impeded by the ever-denser thicket of procedural protections, such that a case of any complexity is eventually reduced to a war of legal attrition.
Don't even get me started on the post-trial situation.
In just a few days I've developed much more severe misgivings about the process that we use to put people in prison than I had before.
That gives some weight to the idea that the problem is long sentences, but admits some other ideas too, like that our prison population is less the product of criminal statutes or sentencing and more due to economic and educational inequalities. The US is large and diverse in a specific sort of way that may amplify this.
After all, the standard of proof in a civil case is lower: "preponderance of the evidence". Negotiation between the affected parties can, at little cost to the government, come to a settlement more easily and fairly than involving the full force/ego/ambition of federal prosecutors.
Sure, criminal prosecutions almost always come first. (The aggrieved parties prefer to have the government take on much of the trial cost, and can use the conviction "beyond a reasonable doubt" to fast-track their later case/negotiations. And even failing a conviction, they can pursue the civil case later.) But it might make sense to reverse that usual ordering, perhaps even by involving some of the public resources in the civil case, as a way of testing the "minimum viable case" before going all-out.
And even if the criminal trial comes first, the full sentencing could be put on hold until civil claims are resolved. That'd lead to more realistic damages/sentencing and an important check on prosecutor discretion in dreaming up massive damage figures.