Most importantly: when you are charged with many counts of the same crime, the DOJ likes to write press releases suggesting your sentence is the product of the maximum sentence of each count. But that is not how sentencing works in reality. Reality works more like this: the judge uses sentencing guidelines to figure out a sentence for the "worst" single count you're charged with, and that's how much time you serve.
> uses sentencing guidelines to figure out a sentence for the "worst" single count you're charged with,
The prosecutors get to decide what if any counts you are charged with. They have the most control over sentencing, judges very little. The little Judges do have is often constrained by mandatory minimums some of which require consecutive termss.
That judges are able to use their discretion and work within "guidelines" is a myth.
There are no mandatory minimum sentences for computer crimes of any sort. Here's an apparently more-or-less complete list of federal crimes that have mandatory minimums:
* Drug trafficking or manufacture
* Firearms used in the commission of felonies
* Identity theft, but only in the context of the specific list of crimes in 18 U.S. Code § 1028A (c) (purchase of firearms, immigration, passports, terrorism, bank fraud, &c)
* Trafficking in illegal immigrants
* Sex offenses against children
* Hijacking, kidnapping, violent terrorism, and hostage-taking
* Murder
* Racketeering
* Piracy, of the yo-ho-ho variety
The "consecutive sentence" issue here is also tricky, because some of these minimums are added as sentence accelerators; for instance, the gun crime minimums add years to the sentence you'd get for the underlying felony, and those extra years are served consecutively --- but that doesn't make all the charges for the felonies necessarily "stacking".
Mandatory minimum sentences are a terrible idea, and the minimums for drug crimes are particularly stupid, but they're not a factor in this story.
"if you are found to violate the CFAA as part of an activity that involves a variety of other crimes, you can now also be charged with racketeering. More specifically, if you look at that long list of related statutes in the definition to 18 USC 1961 (1), it will also include: "‘section 1030 (relating to fraud and related activity in connection with computers)."
First, don't ever take legal analysis from Techdirt at face value. It's often quite bad. Here are good comments from 'tzs about this issue ('tzs, besides being one of my favorite HN commenters, also went to law school):
Second, not all racketeering crimes are subject to federal mandatory minimums --- racketeering charges with minimums all involve forms of money laundering. The court has to find that you were laundering money regardless of how you use computers to do it.
Third, Techdirt takes the bill radically out of context; by Techdirt's logic, 18 USC 1961 also makes any misuse of a passport, any bribery, any counterfeiting, any obstruction of justice, and any violation of money transmitting statutes "racketeering". Of course, that's not how the law works. CFAA offenses were merely being suggested as one of the huge list of offenses that could, in the context of a racketeering case, be construed as part of the racketeering. The state still needs to make a racketeering case on the merits.
Fourth, in context, that one section of the bill actually makes sense. Racketeering is the crime of running a "racket"; the best-known example of this is a protection racket. It actually doesn't make sense for computer crimes to be exempt from the list of things you can shake businesses down for. As luck would have it, this is an issue being discussed on the front page of HN today:
Fifth, the bill was a House draft that apparently never made it out of committee.
If you want to learn more about the elements of the crime of racketeering and RICO in general, a good place to start is model jury instructions.
I'm less charitable towards Techdirt than other smart people seem to be. Popehat, for instance, which I more or less revere, routinely links to them. I find their coverage misleading at best, and often --- as in this case, where the author tries to convince their readers that the House wants to make all CFAA crimes chargeable as "racketeering" --- overtly dishonest.
In any case: no, nobody has proposed mandatory minimums for CFAA crimes.
The sad part is the people who refuse to recognize this and keep repeating the 400 year numbers. That probably only makes it even more terrifying for the next defendant. Hopefully their lawyer will tell them what they're really facing, but it can be tough for a lawyer (we all hate the lying lawyers, right?) to overcome peer sentiment.
Perpetuating these myths does a disservice to anyone who believes them. If you want to take away prosecutors power to threaten, stop giving it to them.
Yeah. The problem is that they aren't quite falsehoods. A judge can structure the sentences to run consecutively, especially if that's necessary to achieve the guideline sentence. It's true, though, that this is extremely uncommon. Nonetheless, though, DOJ probably should also not be out there spouting a lower number. Perhaps they should just stop bragging about sending people to jail altogether.
(We've disagreed about this before. Instead of rehashing everything we've already written about the guidelines, I'll just direct people to this previous discussion -- unless, that is, you have anything you'd like to add. https://news.ycombinator.com/item?id=7999002)
[Is what I wrote before you pointed out your earlier comment, which is fantastic and I have nothing to add to it. Sorry, I should respond to comments assuming people know what they're talking about, and in criminal law threads I have a bad habit of doing the opposite.]
...states outright that grouping is mandatory. I'm guessing you're right: that if a judge can articulate a reason to override the sentencing rules, they can do that. I'm trying to find a case where such a thing happened and was then challenged on appeal.
But what did the conversations look like behind closed doors? "If you don't work with us, I'll guarantee the judge gives you the maximum sentence" seems plausible.
They can't guarantee that. Even the judge can't guarantee it. The grouping rules for sentencing multiple charges are binding. It's not a situation where "usually judges are just cool and don't make you serve the sentence for every charge". Grouping is mostly not discretionary.
I find it curious that so many people HATE lawyers, until they need one.
The state has virtually unlimited resources and a legal monopoly on the use of force to compel obedience. That's far more terrifying than the ability of some lawyers to spin events in a favorable light.
Because when it comes down to it, lawyers (as a profession) are responsible for getting this garbage into the legal code in the first place.
It would be like me writing a business-critical app in INTERCAL or Brainfuck simply out of job security by obscurity, except instead of just me, imagine this was a commonly accepted practice for programmers, and you had to go to a very expensive school to become a programmer in this hypothetical world.
What people are upset about, harsh sentences and lack of judicial discretion in sentencing, were introduced on the back of public concern over criminals being let go on "technicalities" or judges giving lenient sentences based on "sob stories."[1] But those changes reduce how much good lawyering can help a defendant, and thus reduce the value of criminal defense lawyers.
[1] It's really interesting to watch 80's dramas like "Star Chamber" to see these concerns aired out.
As much as programmers are responsible for making computers as impenetrable as possible for normal folks to understand.
And let's not even get started with the mathematicians.
We all know that when stuff gets down to the details, things get complicated, edge cases multiply, and language turns into jargon. Law is no different.
You've said this a few times, but you leave out how scary it must be to be charged in such fashion. Some people are uninformed and plead guilty just to avoid that scary fate.
I know you're not saying anything more than "This isn't actually what it would have turned out to be," but what would it have turned out to be if these charges had stuck? I'm curious how long a felony count of computer fraud or cyberstalking will land you in prison for.
I don't know, but that's not what happened in this case; the defendant had an extremely competent lawyer who specializes in computer crime cases.
How long could your sentence be? With no criminal history and for offenses deemed non-money-making, your sentence could be so low that you fall below the threshold for probation. On the other hand, if your crime is deemed serious or you have any history, 3-4 years might be more realistic. If you ran the world's largest credit card ring --- really, if you did anything with credit cards --- think more along the lines of 10-20 years.
Interestingly, that last point has been a truism in the "computer underground" since I was a teenager. Break into phone switches. Own up Unix boxes. Release viruses. Just don't fuck with credit cards. It remains truish today.
One of the things people should understand is that plea bargains are not binding on the court. Before a plea is accepted, a judge will engage in a plea colloquy, where she will have a conversation with the defendant in open court to make sure that the defendant really understands what he's pleading to. A judge has no obligation to accept a plea she does not think is supported by the evidence, or which she thinks based on the colloquey goes beyond what the defendant is freely admitting to have done.
Which is why people being charged with crimes get lawyers: the lawyer can translate the legal proceedings and give you an actual understandable view as to what they mean.
It certainly is scary. Those folks are even scary for relatively "small" stuff. Small to them, but enough to majorly disrupt your life.
A competent lawyer is not cheap, and does all the legal things you would expect -- but, if you are lucky, does a lot to help with the psychological/emotional trauma you are going through.
I think this is implied in your post, but I want to make it explicit: this is not unique to computer crimes. It's endemic to the reporting of criminal prosecutions in general.
This is an important point because I've seen a lot comments on HN along the lines of "prosecutors single out computer crimes for crazy sentences."
With respect to But that is not how sentencing works in reality, I think that in the long run this is correct, but during negotiations between accused and prosecutor, the numbers will be trotted out, and will be very hard to ignore for the accused. So such numbers do have weight on the mind of the accused.
No, I don't think so. Your lawyer can be telling you that the numbers that actually happen are reduced, but in the moment of fear and isolation, it may not truly sink in.
http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence...
Most importantly: when you are charged with many counts of the same crime, the DOJ likes to write press releases suggesting your sentence is the product of the maximum sentence of each count. But that is not how sentencing works in reality. Reality works more like this: the judge uses sentencing guidelines to figure out a sentence for the "worst" single count you're charged with, and that's how much time you serve.