Hunter Moore and Federal Prosecutorial Power

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

Comments

  1. C. S. P. Schofield says

    Who should we give that power to? Seriously; if you have suggesting, I would like to hear them. Should it be totally in the hands of the judges? Why? Should it be iron-clad spelled out in sentencing guidelines? Doesn't that just aggregate the power of the prosecutors? Should the prosecutors ask the persons harmed what charges should be brought? That would, at least, reduce or eliminate the pernicious tendency of various buttinskis to make victimless behavior criminal.

    I agree that the system is flawed. I'm not sure I see an alternative that I think would not be an order of magnitude worse.

  2. ketchup says

    Somebody needs to have some discretion, otherwise Aaron Swartz has to be treated the same as Hunter Moore. So if for the sake of argument we agree that prosecutors have too much discretion, who should get to decide? Judges? Judges are human too. It seems to me that any system that allows humans to have discretion is imperfect, and any system that does not is worse. Are you arguing that prosecutors are more fallible than some other category of human being? I won't argue against it, but I'd be interested to know your argument for who SHOULD have the discretion.

  3. Votre says

    II guess it ultimately goes back to Oliver Wendell Holmes' now famous reminder that we have "courts of law," not "courts of justice." If you want attain that elusive humanizing apotheosis under a given legal system, you'll need to create courts of justice first.

  4. John Dwyer says

    When you ask should we trust that power in the hands of the "federal government," I assume that you mean prosecutors of the executive branch, like your former self (or perhaps prosecutors in the legislative branch, based on the sentencing guidelines). That leaves the best answer, of course, the judiciary. Everyone else's role in the system is adversarial by design (I'm guessing you won't argue that we should actually expect prosecutors to advocate for "justice."). Sure, that creates other problems such as "hanging judges," racial discrepancies, and the like, but there are at least potential mechanisms to address those real problems.

  5. C. S. P. Schofield says

    Votre;

    I think we should aspire to Courts of justice, but expect to fail. And I think we should be especially cautious of any system that runs to draconian law, supposedly mitigated by authorities with compassion. Historically, Authorities and Compassion are seldom found in the same room.

  6. Sok Puppette says

    Yes, it would absolutely be a million times better to give discretion to judges than to give it to prosecutors. Judges don't have the same political pressures that prosecutors do. And the job of a judge is to apply the law neutrally and as justly as possible, whereas the job of a prosecutor is to "nail perps" (on which they're expected to rack up statistics). I may be a naive old softy, but I think that people's perceptions of what their jobs are really do affect their decisions.

    And it would be good to reduce the overall amount of discretion out there, too. And to simplify the sentencing system and cut way down bullshit add-on charges ("using a submarine", anyone?).

    I would also like to see some real evidence that the system's extreme punishments do anything other than make people feel avenged. Because that's not an acceptable goal.

    On another subject, although I totally agree with the main point about prosecutorial discretion, I do find it interesting that Ken puts Lori Drew, who organized a conspiracy that drove a teenager to suicide, in a "less despicable" category than Hunter Moore. Seems to me the two of them are morally, if maybe not legally, right about at the same level.

  7. albert says

    The system isn't about making the punishment fit the crime, that's for sure. It's about conviction records for the prosecutors, revenge for the victims families, the crazy idea that extreme punishment somehow prevents crime. The things that impressed me about the Swartz case were:
    1. MIT stood idly by and watched the feds steamroll him ( I guess they really showed him you don't mess with MIT)
    2. The _entire_ JSTOR board resigned in protest.
    .
    The psychology of school administrators (and federal prosecutors) is well covered here.

  8. says

    @Sok:

    I quite agree that Lori Drew is morally despicable. But what she was prosecuted for — using an alias on a social media site — demonstrates the breadth of federal power.

  9. says

    @Sok Puppette:

    Judges don't have the same political pressures that prosecutors do.

    I just finished watching last night's John Oliver and I think it's fair to say that a lot of judges DO have the same political pressures that prosecutors do. Maybe not on the federal level, but most state judges are subject to electoral politics and all that entails.

    (I'm in Arizona and, while I think there's a lot wrong with politics in my state, I think we've got a pretty good system for selecting judges: a nonpartisan commission nominates them, the governor appoints them, and the voters can remove them from office.)

  10. Kilroy says

    Doesn't the defendant have some choice as to whether to plead guilty or not? And the prosecutor does not have absolute authority to choose the charges, as he/she is still limited by the conduct of the defendant. So is the complaint that prosecutors can file charges on all conduct when they have the option of only charging some?

  11. Dave Crisp says

    @Kilroy: Remember: it's virtually impossible to leave your house without committing at least three felonies.

    If prosecutors didn't exercise their discretion not to charge, the entire country would be permanently in court. Including the USA's themselves.

  12. Securities Guy says

    Tell me your thoughts. I was threatened with 30 years and within the sentencing memorandum the prosecutor wrote "While the fraud is committed using the anonymous medium of the market, and the Government does not assert that the defendant actively wished harm on any investors, the fact remains that the defendant had to know that unsuspecting investors could be hurt by the promotional campaigns he and other co-conspirators carried out." What do you think about that aforementioned statement? there are too many laws in this country based on every new politician that gets elected trying to make a name for oneself. Take Aaron Swartz who was hit with numerous charges and also threatened with a number of years. Should he have been prosecuted in the first place. I was curious about peoples thoughts on that statement. Its contradictory in nature. Why should a person hit with this be punished if the government even stated themselves that this person did not actively wish harm on investors? What happened to malicious intent? Now someone could always use an example such as "Well if you are drinking and leave the bar, go in your car and hit someone, than it is your responsibility to accept the consequences of your actions. I agree but disagree that these are two in the same. For one thing business is far more complex and another is that people use to get indicted on just malicious intent which must be proven in state cases but not federal ones. Again I just wanted to hear other people thoughts on that statement because when I first read it I thought it was absurd, thats all. Also if the person had to know unsuspecting investors would be hurt wouldn't that person have to have malice of forethought? Someone on another forum repled "not a provable case of "malice aforethought", but certainly one of "reckless disregard" and "breach of fiduciary responsibility". In which I said " When I think of fiduciary I think of someone that is typically licensed or a corporation like a bank held to a higher standard by the law not an individual who was not licensed. Also threatening someone with 30 years is a bit extreme don't you think especially when they never so much as had a traffic ticket before? As I stated before this is not like a drunk driving case but a bit more complex. In fact this case involved so called manipulation of stocks as opposed to a Bernie Maddoff. One other thing I should mention is that in this case the individual charged utilized disclaimers so were is the reckless disregard? Would love someones thoughts thanks

  13. L says

    If the idea is to give the power to the judges, then how does that work? You committed five bank robberies, but to allow you to plead to one or two or three would put too much power into the hands of the prosecutor. So we charge you with what you done did, which is five, and you can either plead straight up (no deal, no benefit), or you can go to trial. So we go to trial, and you now have five bank robbery convictions, and all the sentencing power rests in the hands of the trial court. Barring a drastic downward departure, you'll die in prison, but at least we took some power from the prosecutor. That can't be what you're pulling for, can it?

    (This is all setting aside the fact that the real ultimate power rests in the hands of the defendant, who could have chosen to rob zero banks instead of five, for which he would face no punishment. And yes, I'm familiar with the idea that we all commit three federal felonies every day. I'm dubious, but even if it's true, it's only an interesting argument when talking about someone like weev, not someone who robbed five federally insured banks.)
    I think the real problem is that there are too many crimes, especially too many federal crimes, and that sentences are too long. I think if we reduce the number and severity of crimes, things get better even without changing the relationship between prosecutor, defendant, and court.

  14. L says

    Sorry, my previous comment kind of muddies up the bank robbery charges and the 924( c) charges. I think the point still stands, though. Prosecutorial discretion is not about what to charge, it's about what not to charge. Without it, five violations of 924( c) means five charges of 924( c), and, if proved, five convictions of 924( c). Now your minimum is 105 years, but at least the power's not in the hands of the prosecutor.

  15. Rich Rostrom says

    Relatively young people are charged with life-and-death decisions in other areas.

    A twenty-something army lieutenant has to make such decisions about the troops he commands. Rookie police officers have to make such decisions about the suspected criminals they confront. Doctors make such decisions during their residency year, when they are just out of medical school and in their mid-to-late 20s.

    In these cases, there is no review or backup. In your case, your recommendation was submitted to a senior officer for action; one presumes that the Chief would do at least a cursory review.

    But as noted – if the prosecutors don't have the discretion, who does? The judge? Judges can be arbitrary, bigoted, lazy, or incompetent, and are not subject to review except by the arduous appeal process.

    Sole discretion of the judge could easily produce as many questionable results as prosecutorial control.

  16. anon says

    I hope there is a special place in hell for people who sign up to destroy the lives of others. Being a bank robbing junkie is bad. Being a Federal Prosecutor… infinitely worse. It's an informed decision to do wrong. You know that "mandatory minimums" and the myriad of dirty tricks and bogus laws of the Feds and their prosecutors are not designed for justice, and that "law enforcement" is just the name for "enforcing the will of the dominant elites of the time, and you go on to join up to be a member of the biggest gang. Not for justice, or protecting your mother or neighbors.
    You knew when you joined you were going to do evil, even if you justified it in your head as the cost of playing the game. That's how we know what you are; you did it on purpose, even if you spend some time on crocodile tears later. But you don't understand that you're evil, that you are deficient as a human being; that's why we have to hope there's a hell waiting for you.
    I may have to remove this blog from my list.

  17. says

    Dear Anon,

    Since I have repeatedly written about my past as a federal prosecutor and my misgivings about what I learned about prosecutorial power, it's not entirely clear why the blog was on your list in the first place.

  18. anon says

    @ KenWhite

    I'm relatively new to the blog. It may be possible that a human can do what you did, knowingly, then repent and reform and regain his humanity. But your throwaway line about not remembering the person's name says all I need to know about you, and how much you've "reformed," or not. I was threatened with 50 years for marijuana (1-10 x2 for distribution, 5-30 for growing), so I know a bit about prosecutors and their use of insane sentencing guidelines to torture and destroy people. You didn't leave when you realized you were a tool for disgusting criminals, you sentenced and then forgot the name of the man whose life you destroyed. I'm sure you're pretty satisfied with where you're at now; hence my fervent wish that you are someday shown who you are, and what you deserve.
    Despicable. I'll show myself out, and wipe my feet when I leave.

  19. Sami says

    I'm not sure of the answer to this; I'm not sure there is a single "right" answer. But I think mandatory sentencing is definitely a wrong answer. Generally speaking I think sentencing should be a question for judges, and that problems with the judiciary are things we have to anticipate will happen and try to fix. Is the Federal judiciary all appointed? Because elected judges are just a terrible idea and probably should have as little power as possible. (Call me crazy, but I think a primary qualification for judges should be "knowledge and experience of the law".)

  20. Sami says

    … Also, is it just me, or does "anon" kinda show his hand there? "I am bitter at prosecutors because I was threatened with criminal consequences for crimes I knowingly committed, therefore you are a bad person for having prosecuted criminals for criminal actions, and are permanently responsible for the consequences of career choices you made before your pre-frontal cortex was even fully formed!"

    I believe mandatory minimums are wrong, and abuse of prosecutorial discretion is a problem, and for the record I think marijuana should probably be legal to consume (although not to smoke unless in well-designed buildings that filter all smoke emissions before they reach the outside air, because I believe VERY STRONGLY that someone else's wish to smoke should not supercede my choice not to), but "anon" is still an ass.

  21. anon says

    Yes Sami, very astute. You know that you can't have experience with an evil and still call it evil, because that would be… too easy? I'm sure Godwin would approve of me pointing out that my grandmother (RIP) was qualified to say that Nazi's were evil, even though…
    And one more thing, Sami. The "crimes" I knowingly committed were not moral crimes, but "legal" crimes. Hence, I'm not a criminal. I don't feel one whit ashamed, nor does that disqualify me from saying that the two types of common criminal (the private thug, and the government thug) can go to hell holding hands.
    p.s. OP, why don't you go learn the guy's name, and find out what he's up to? Or, would that hurt a bit too much, that induced self-reflection? Feel free to be snarky to me, but if you haven't, and don't bother, then you know what you are and don't need me to tell you anyway.

  22. CheshireLion says

    Walking onto someone's front lawn, yelling at their front door for all their neighbors to hear the terrible things about the person that lives inside, it seems tactless and tasteless. In a more open space like a social media site, or maybe even a neutral forum something like that kind of ranting and raving would get written off as trolling. On a blog where someone chooses to open up about their own life in an honest way just does not seem like the right space for such a discussion. I have been lurking on this site for years, I do not know Ken, or anything about the others who write here. I do not agree completely with all written here, but I come because it is honest. I like this blog because it gives a view point I cant find. @anon: People are human

  23. Yon Anony Mouse says

    Worst Clark post yet!

    Oh wait.

    Also, the comments above about judges not feeling political pressure are almost shocking in how naive they are. Or do you think people appointed by politicians aren't somehow impacted by politics?

    Problem is that either (any) way is going to be a mess. It's just an endless experiment in finding the least bad method.

  24. ketchup says

    And one more thing, Sami. The "crimes" I knowingly committed were not moral crimes, but "legal" crimes. Hence, I'm not a criminal.

    Wow. That way of thinking would totally work!
    If only we would change all of the laws to correspond to Anon's moral code, we wouldn't have to worry about this "discretion" stuff. We wouldn't even need laws, come to think of it. Anytime someone does something, we just ask "Does Anon think this is moral?" If yes, no crime occurred.

  25. ketchup says

    I know what you're thinking. "That idea is totally impractical! Anon doesn't have enough time to decide whether every person's action is moral or not!"
    You're right of course. So here is a more practical version of the idea: Let everyone decide for him or herself whether or not an action is moral. As long as you think your own actions are morally justified, you have committed no crime. When you catch yourself in a sin, just let yourself into the jail, like Otis in Mayberry.

  26. anon says

    @ Ketchup

    Legal positivism much? So, you would have fought to keep slavery legal, because it was already legal? So yeah, a State can criminalize any behavior it wants, but that don't make everyone a criminal. There is a difference somewhere in the world, but you'll have to ask someone to explain it to you.
    As to your next comment, I'll let Straw Man llc come after you for infringement. Anyone reading my post will know that you've just defeated… a post you've written in your head. Congrats. Yes, there is a difference between real crime (with victims) and State crime (whatever they've decided to criminalize). And yes, there are even immoral acts that are not legally crimes.

    @CheshireLion

    "On a blog where someone chooses to open up about their own life in an honest way just does not seem like the right space for such a discussion."

    Seems like the exact place to criticize someone for their actions is on a forum that they use to write about their… actions. And on the exact post on which they describe their… actions. I mean, I know we live in the age of Hurt Feelings Uber Alles, but can't we leave the childish aversion to criticism to the feminists? OP is a full-grown man and can handle my words. Heck, he's put full-grown men in prison for his handlers; I think he can deal with a little bit of warranted criticism.

  27. ketchup says

    Anyone reading my post will know that you've just defeated… a post you've written in your head.

    Oh, you mean like

    So, you would have fought to keep slavery legal, because it was already legal?

    Because that's totally what I said.
    "Anon's moral code wouldn't be a good basis for law" = "Everything that is already a crime should stay a crime" You understood perfectly.

  28. LrdDimwit says

    Ken,

    To answer your questions about why we should trust you, or the Federal government, with that kind of power – I can only say – As opposed to what? I don't see you proposing any alternatives here. Much as I dislike the byzantine way the law works and grinds unevenly and imprecisely, I do think we need such a thing. You yourself say you don't think Hunter Moore should get off with two years, that he should do more.

    Who is there to make that decision, if not the prosecutor? The judge? Judges are supposed to be impartial; deciding which laws you broke and why the government wants to put you away is the prosecutor's JOB, isn't it? If you agree that this man deserves to go to jail, then what is your proposal for how it ought to work better?

  29. says

    Dear @anon:

    I also prosecuted marijuana growers and dealers. I've talked about regretting that, too.

    You should really leave soon, you haven't begun to plumb the depths of my evil.

    Despicable. I'll show myself out, and wipe my feet when I leave.

    Liza Minelli had a less prolonged and self-indulgent farewell tour.

  30. anon says

    @ Ketchup
    I've crossed the bridge already. You would have noticed if you looked up before typing. You can holler at the next person for a quarter when they get ready to cross.

    @ Harry Johnston
    I guess you haven't read the comment I was responding to, or the fact that I said that I thought he COULD handle it. So, do you think you'll get a date from OP for defending him from things that don't exist? I love when people try to be stars by inserting themselves into something they don't understand and defending someone they don't know from something that doesn't exist. Kudos.

    @ Ken White
    Yes, you've got a sense of humor about it, and that's *great.* And I'm not on a tour. I get updated that your sycophants are commenting about/to me, and I'm responding. Now you've commented to me, and I'm responding. Isn't that odd?
    I'm glad you have regrets about your despicable behavior; I'm glad you have even identified it as so. That's rare. I'm glad that you've decided to use your sense of humor to protect your ego from the full reckoning of what you've done, and the harm you've caused. You were just following orders; who could think you've done wrong?

  31. Andrew says

    @Anon, you are raising two separate cases. Insofar as you broke a law, you are criminally liable. You didn't have to deal in cannabis, you chose to despite the existence of laws against it. That was your choice. Your morality diverges from that of the law in this case.

    With regard to the morality of being a prosecutor, this is a required role in our system of law. Your morality appears to diverge from that of society in this case.

  32. Dawn says

    Part of the problem with young prosecutors and the power they yield is that their youth affects their perception of the term of incarceration. When your 26, two years or 10 years, seems like a small penalty. When you are older, and are approaching your own time of death, the thought of dying even 2 years earlier seems unbearable. You savor each and every day. Putting someone in prison for 2 years seems like a hell of a penalty. It would be interesting to see a study that compares the age of prosecutors/judges to the length of sentences meted out, to see if there is a negative correlation.
    A similar area of "justice" where I have chaffed at the power yielded by young twenty somethings is in child protective services. Twenty year olds deciding whether you are a fit parent and endowed by rubber stamping judges to impose parental death sentences, aka termination of parental rights.
    As others have noted, I,too, am resigned to accept our system whereby power must be wielded and no clear best answer emerges to the question "by whom?"

  33. dragonmum says

    Rich Rustrum – just because young doctors are able to make life-and-death decisions doesn't make it right. We kill people. I killled people. Maybe not ones that wouldn't eventually die, and almost certainly not intentionally. We are also at least -nominally- overseen by more experienced doctors. But we kill people in training. Same goes for rookie cops, as has been rubbed in our faces by the media recently.

    I think a young Federal Prosecutor is probably the least politically pressured of the elements of the state – some judges and police chiefs are elected or bought. Maybe you were the right person. I hate mandatory minimum sentences though. They're certainly one reason for the plea manipulation and they seem to harm the less hardened criminals more than the multi-offender types.

    What I don't understand, Ken, is why there wasn't a head prosecutor of some sort with more experience for you to discuss the case and help you decide. I guess the Law is a harsh mistress.

    anon – I hope you like paste.

  34. anon says

    @dragonmum

    Cryptic. Is this meant to be a snarky threat? Or did you typo "pasta"? Is it merely aspirational? Have some balls, dear!

  35. Jacob Schmidt says

    I believe mandatory minimums are wrong, and abuse of prosecutorial discretion is a problem, and for the record I think marijuana should probably be legal to consume (although not to smoke unless in well-designed buildings that filter all smoke emissions before they reach the outside air, because I believe VERY STRONGLY that someone else's wish to smoke should not supercede my choice not to), but "anon" is still an ass.

    While anon may be an ass, this reasoning is suspect. By such reasoning, anon is an ass because he/she has internalized the message that prosecutors using massive penalties for relevatively trivial crimes is an awful, terribad thing to do; the same message that appears in the OP.

  36. dragonmum says

    Thus my question – what are the alternatives? Mandatory minimums (as I understand them, being a shrink and NAL) were put in place to limit judicial abuse. So the abuse occurring on the prosecutor's part is more obvious. What system wouldn't be manipulated? How would you all make sure that despicable dirtbag Moore got his "just" punishment?

    I am reminded of the judge who polled the jury on what they thought the sentence should be for the child pornographer. Seems like there's a lot of guilt attached to putting someone in prison for what is percieved as a non-violent crime, no matter how loathsome – As well as anger for the person who has the intestinal fortitude to play the role needed to make the system work. A good prosecutor (like a good doctor) needs to have just enough antisocial character to be able to compartmentalize it.

    edit: words

  37. Jacob Schmidt says

    Thanks for agreeing with me, however sarcastically. Someone gets it.

    It's a limited agreement. I can understand viscerally distrusting Ken because of his past actions as a federal prosecutor, particularly when he himself admits some of those actions were suspect, and when you had similar actions taken against you.

    In principle, though, Ken has since spoken out against such things, and possibly worked against them too. He's also helped cultivate a discussion space where nearly everyone involved is heavily opposed to such actions and systems that enable them (to the extent that is feasible). In principle, it's unfair to refuse to acknowledge that.

    (I feel like Ken is making an implicit argument that bad systems with destructive incentives can lead to regular or even good people to do shitty things; that, or I think such an argument needs to be made and I'm reading too much into Ken's writing.)

  38. anon says

    @ Jacob Schmidt
    Well, in the spirit of your "limited agreement," I was mostly joking anyway.
    I don't "viscerally distrust" OP, I see that he knows he's destroyed lives and casually dismisses it by flippantly letting us know that he can't check on them anyway because he's forgotten them. Well please excuse my morals and principles, but if I was to try to prove to people that I wasn't the scumbag that I was, I would, ahem, at least learn the names and whereabouts of the people I believe I have wronged. If he has, he's lying about it for some reason? I believe that his declaration against interest should be taken seriously, and as such he's proven to me, fwiw, that he's *not a great human being* at heart.
    As for everyone here banging their heads against the wall wondering which monopoly of qualify-edly immune power hungry sociopaths should have the power to cage people indefinitely in order to get promoted or re-elected… has anyone ever considered restitution as being relevant? Who are the victims, and what do they have to say? (and yes, I do have experience that you'll say taints my opinion: mysteriously in my sentencing phase the victim impact statement was … shall we say, lacking? I suppose that disqualifies the idea.)

  39. Dave B says

    So if anon is against prosecutors and finds any of them despicable and I guess would like to do away with them totally, how would a judicial system work?

    Just a defense lawyer and a judge. But why a defense lawyer if there is nobody prosecuting.

    Should the police be the end of all things, Judge Dredd Style but with defense lawyers.

    Or should everything be a civil matter? But then the opposing lawyer would in essence be prosecuting?

  40. Sami says

    I love it when people announce their departure snidely then hang around to keep adding more things. It so often affirms my negative judgement of their character. (But then, "petulant and unable to let things go" was kind of a slam dunk from the outside, since this dipshit thinks hurling personal abuse at anyone who's ever worked as a prosecutor is totally legit because of that one time he got caught committing crimes.)

    And that people who can't remember the names of people whose lives intersected with theirs briefly several decades ago are bad people.

    Also, anon, you're actually very wrong about an important point. You broke the law. That makes you a criminal, regardless of whether you believe your actions were moral or not. Now, there is no inherent moral wrong to the status of criminal; notable figures to have committed criminal acts include Jesus of Nazareth, the entire force of the Revolutionary Army of the fledgling United States, the majority of participants in the Arab Spring, and just about every civil rights activist ever. However, unless you're advocating anarchy, it's disingenuous to try and evade the label.

    As Dr Martin Luther King, Jr, wrote: One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

    If you believe a law is wrong, campaign to change it, or undertake civil disobedience knowingly and willingly, but do not break the law as it stands, current and enforced, and claim that it is somehow unfair to be prosecuted for it. The law is not conditional on your agreeing with it.

  41. Dawn says

    What about jurors? Should they share in the culpability? Is it moral to simply follow the directions of The Black Robe, or should they follow their conscience?
    You only have to be 18 to serve on a jury. That's a lot of power for a young person, too.

  42. Taleisyn says

    @Sami: But it's so much easier to snark about people he doesn't like being Evil Incarnate than to actually, you know, promote change!

    @Everyone: At this point, I'm pretty sure anon is just a troll. If we stop feeding him, he'll eventually go away.

  43. Guy who looks things up says

    @Sami

    Exactly, plus one thought. Risky behavior entails potential consequences. Sometimes the consequences materialize. Wasting a lot of time crying "oh poor me" indicates failure to grow a pair, dearie.

    Well, two thoughts, actually. About the "not a moral crime" claim — I once accepted it. Now I'm more of an agnostic on this point, mostly because everyone with a position on the topic also has an axe to grind.

  44. anon says

    @Dave There should be no crimes against the "State," only against people. So even though you're trying to be cute (Judge Dredd…), you're on to something. Yes, there could be a negotiation between the judge, jury, defense, and prosecutor/injured party, all with reference to precedent and local conditions. Or similar. There is no specific need to have codified mandatory minimums and guidelines. In fact, those are there to remove monopoly discretion that had been found to lead to bad outcomes; it's just that they didn't fix it that way. It's unsurprising that they would try to reign prosecutors and judges in after giving them so much power and discretion; it's further unsurprising that their fixes wouldn't work given their own terms.

    @ Sami
    1) I get updates from this post, and if someone mentions me I'll respond.
    2) I'm not surprised that you need affirmation.
    3) Being a prosecutor might be a red-flag, but being a prosecutor when you know what you are doing isn't right is what we're talking about here. There's a big difference. If you think you wrongly destroyed someone's life then, yeah, how much you think about that – and do to mitigate the harm – reflects on you. Is that controversial for anyone besides Sami?
    4) Yes, I am a "criminal." I concede that point and should have been more clear of what I meant so as not to give anyone with a popgun some "ammunition." My point was that prosecutors use this power to destroy anyone in their path (for points towards promotion or election); I was trying to indicate to you good people that I was not a child-raping arsonist – to underscore that point, and to illustrate that perhaps a threatened 50-year sentence might be inappropriate power to hand to the prosecutor re: the OP.
    5) re: "don't break the law and complain" The point of the OP is that prosecutors have too much power and discretion, so the complaining part is actually exactly what I should be doing in this forum.
    6) And finally, to show what a selectively quoting ass you are, here's the full King quote: "There are just laws and there are unjust laws. I would agree with St. Augustine that an unjust law is no law at all… One who breaks an unjust law must do it openly, lovingly…I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law." I mean damn, the quote you edit actually makes the point you were trying to deny. Are you 12? Did you really think you could just go on the internet and lie? Children. smh

    @ Taleisyn
    1) I have offered suggestions for change, and only answered snark with snark. Anyone reading the exchanges can see that, so what is your point?
    2) It is true that if no one mentions me I will not respond. But you don't understand what trolling is. Methinks you just really like to use internet slang you've been hearing the cool kids say.

    @ Sami again
    1) You're missing the point again. Go back and reread what I wrote if it's been too long. You're responding to your straw man. I was responding to the OP (which is where we are, the comment thread of a post), and the post was about sentencing discretion. I'm sure if you're pulled over on the way home from Chuck E. Cheese today and they hand you a 150 year sentence you'll see my point. You won't be whining that you got caught, or that you should be able to break laws with impunity, but that the sentence doesn't fit the crime, that the crime should not entail jail time, or that the prosecutor had too much discretion (since everyone else just pays a fine, why does Sami get 150 years?). Got it? Good. That was free.
    2) You're agnostic about morality. Congratulations. Now go turn in those runaway slaves, and get Anne out of your attic you dirty criminal.

    @ Securities guy
    It's kinda hard to give you a full opinion when we know so few facts of your case. But given the statement in the memo I would tend to agree with you on the point that we have too many laws which don't reflect malicious intent and are used beyond their original intent (well, sometimes that original intent was masked in the process of getting a slightly ambiguous law passed). We should limit crimes to cases where someone is hurt by your action and can prove causality and damage. That would also speak a bit the question posed in the OP.

  45. anon says

    @ All
    I've unsubscribed from this post/site. I'll let you guys tilt at all the windmills you can find in my comments; based on the quality of argument I think it's time to leave you guys to your circle jerk. I feel confident that anyone stopping by to read what's been said will follow my meaning.

    @OP
    I know you think you're a swell guy (we all do, even me and Judge Dredd); but please consider that if you've really realized that what you did was wrong, morally, then not taking action now to rectify those wrongs is… wrong. We all think we're not ponies, but sometimes we do pony things because we are and don't know it.
    See? Humor can make it seem like the terrible things you've done are not so terrible. Now think about the actual human beings whose kidnapping and caging you got paid to take part in, and did so for pelf and glory. But there's time yet.

  46. Pakepalani says

    Having discretion at a relatively young age is not the problem. Hiring people with demonstrated good judgment and mentoring them with senior people who have demonstrated good judgment, and not just seniority, would help a lot. Prosecutors can't change the law, but can change how the law is applied.

  47. says

    I hope Anon gives this letter five minutes of his precious cappuccino-sipping, cancer-stick-puffing time. Let me cut to the chase: If Anon's perversions get any more uncompanionable, I expect they'll grow legs and attack me in my sleep. He believes that his mistakes are always someone else's fault. This is a fixed and false (i.e., delusional) belief that will lead to his taking rights away from individuals on the basis of prejudice, myth, irrational belief, inaccurate information, and outright falsehood before you know it. I don't know if we can cure Anon of this jaundiced belief, but I do know that last summer, I attempted what I knew would be a hopeless task. I tried to convince Anon that he simply regurgitates the empty arguments that have been fed to him over the years. As I expected, Anon was unconvinced.

    * * *

    Anon seems incapable of understanding that he claims to have donated a lot of money to charity over the past few years. I suspect that the nullibicity of those donations would become apparent if one were to audit Anon's books—unless, of course, “charity” includes Anon-run organizations that dilute the nation's sense of common purpose and shared sacrifice. In that case, I'd say that there is no place in this country where we are safe from Anon's fans, no place where we are not targeted for hatred and attack. It should be intuitively obvious even to the most casual observer that he always puts a fugleman in charge of substituting rumor and gossip for bona fide evidence. That way, Anon can feign innocence, as he wasn't the one who did anything wrong. In fact, he can easily deny that people tell me that I call this phenomenon “Anon-ism”. And the people who tell me this are correct, of course.
    * * *

    It may seem difficult at first to seek liberty, equality, and fraternity. It is. But Anon's scary principles leave the current power structure untouched while simultaneously killing countless children through starvation and disease. Are these children his enemies? That's the question that perplexes me the most because my fantasy is to immerse myself in the grandeur and greatness of the pre-Anon world, a world in which it was unfathomable that anyone could desire to condone universal oppression. As you've no doubt gathered, realizing such a fantasy requires making this world a better place in which to live. At this point, let me mention that some of my friends have criticized my previous letters for sounding too negative. They suggested that I adopt a more positive tone in the future. Well, as I've reached the end of this letter, I guess I can try ending on a positive note: I'm positive that I find Anon's undertakings symptomatic of a dangerous but spreading mentality.

  48. Makewi says

    Since our current system puts the determination of guilt on a jury of our peers, I'm curious what the reasons are why the sentencing isn't also handled by the same group?

  49. says

    Ken's question is about the power of prosecutors. The story demonstrates even more abuse of power than the "which charge" focus of Ken's rendition. Why is a monopoly power prosecutor involved at all?

    Hunter Moore is a thief. The information (photos) were private prior to his action, so this is not an "intellectual property" case in the patent/copyright sense. Hunter's actions directly harmed the victims and justice demands recompense. Jail time is not justice; it's revenge.

    It's surely a related issue that the government courts make it much too hard/expensive to either bring or defend a civil suit. But that's an issue for another day.

  50. Argentina Orange says

    Why must the sentencing be up to either the prosecutor or the judge? Why not the jury? Yes, that would undoubtedly lead to unequal sentences for the same crime committed in different places and times, but unequal doesn't necessarily mean unjust. Each case is supposed to be adjudicated on a case-by-case basis anyway. Yes, personal prejudices would manifest on the part of jurors, but I'd suggest that diffusing the power of any one juror (by having them be part of a group) is less potentially damaging that concentrating the ability of a single person to act on their prejudices. That was part of the point of the post, no?

  51. says

    @ All
    I've unsubscribed from this post/site. I'll let you guys tilt at all the windmills you can find in my comments; based on the quality of argument I think it's time to leave you guys to your circle jerk. I feel confident that anyone stopping by to read what's been said will follow my meaning.

    Can you say something about your Canadian girlfriend? Because I'm THIS close to bingo.

  52. Makewi says

    Not to add fuel to the fire, but I'm not entirely convinced that distribution of marijuana is an entirely moral act…

  53. Jonathan says

    I think the answer depends on what theory of morality and law you take, and the intersection thereof.

    Really simple, easy stuff. I use it to call well intentioned and compassionate people monsters all the time.

  54. Arthur Kirkland says

    Do prosecutorial positions (or positions as drug warriors in general) generate bad people, or merely attract them?

    I have never been confident about the answer.

  55. Arthur Kirkland says

    Not to add fuel to the fire, but I'm not entirely convinced that distribution of marijuana is an entirely moral act…

    I am not entirely convinced either. But I am convinced it is better than being a televangelist, or stock pumper, or rapist, or drug warrior, or Penn State football fan, or mugger, or continuing supporter of the Catholic Church, or gay-basher, or warmonger, or roofie dispenser, or Medicare fraudster (inside or outside a governer's mansion), or war profiteer, or Bill Cosby, or this guy: http://www.amren.com/news/2015/02/amid-email-controversy-pa-supreme-court-nominee-thomas-kistler-to-withdraw-today/

    Kim Kardashian fan or doobie peddler? I make that one a tossup.

  56. Jacob Schmidt says

    But I am convinced it is better than being … this guy:

    Holy shit that comment section is awful.

  57. Yon Anony Mouse says

    One look at punitive damages awards on the tort side leads me to believe that allowing juries to decide prison time would be nothing short of insanity.

  58. Eldakka says

    I'm actually against the whole concept of plea bargaining, or pleading at all.

    It allows the prosecutor to force a defendant to plea guilty to a crime they did not commit to get, say, 12 months probation, rather than being tried for dozens of crimes which they also did not commit, to up the potential sentence to decades, as happened in the Aaron Schwarz case.

    Plea bargains should not be allowed, period. The defendant should not have to place a plea at all, period.

    The prosecutor MUST prove their case in a court of law before a magistrate/judge/jury (whichever is appropriate). If the defendant chooses not to mount a defense, that is their choice, but the prosecution MUST present their case. And the decision by the court (guilty/not guilty) should be based on the evidence presented. Not by a plea.

  59. Resolute says

    Liza Minelli had a less prolonged and self-indulgent farewell tour.

    Anon's "I'm leaving, no I'm not! Yes I am! No I'm not!!" act was worse than Brett Favre's….

  60. Castaigne says

    @anon:

    Being a bank robbing junkie is bad. Being a Federal Prosecutor… infinitely worse.

    No. You are wrong.
    I'd rather deal with a Federal Prosecutor than have a twitchy junkie empty a revolver in my face because he's gone whackadoo. I have an attorney to deal with the former; the latter I'm just fucked.

    ou know that "mandatory minimums" and the myriad of dirty tricks and bogus laws of the Feds and their prosecutors are not designed for justice, and that "law enforcement" is just the name for "enforcing the will of the dominant elites of the time, and you go on to join up to be a member of the biggest gang.

    Oh Lord, ancap Illuminati bullshit.

    The "crimes" I knowingly committed were not moral crimes, but "legal" crimes.

    Murder is perfectly moral to the dedicated murderer. Remember, "moral" is determined solely by your POV.

    Yes, there is a difference between real crime (with victims) and State crime (whatever they've decided to criminalize). And yes, there are even immoral acts that are not legally crimes.

    Then why are you bothering to differentiate what you think is a "moral" or "immoral" crime, since it has no affect on the law? After all, you have committed an immoral crime, in my POV. You have distributed the pot, causing several people to become addicted to injecting bindles of the stuff and thus becoming churls and noddies. It is a crime of odious opprobium; such addicts should be subjected to the stocks and the distributer of the pot chained inside the town sump, to be relieved on at will.

    If you like, you can also hear my maledictions against the toper and his immoral crimes of ruining good fruit.

    As for everyone here banging their heads against the wall wondering which monopoly of qualify-edly immune power hungry sociopaths should have the power to cage people indefinitely in order to get promoted or re-elected… has anyone ever considered restitution as being relevant? Who are the victims, and what do they have to say?

    Oh, certainly, I'll go for restitution.
    However, you would not like my version of restitution. You caused people, with your distribution of bindles of the pot, to become churls and noddies. By the principle of retributive equity, you must make up for their productive lack. I hereby enslave you for one year for every ounce you sold, to be released at the end of that termm, when you have issued adequate restitution to society-at-large.

    There should be no crimes against the "State," only against people.

    And your crimes (and those of topers!) against society do not count? Society is composed of people!

    And finally, to show what a selectively quoting ass you are, here's the full King quote: "There are just laws and there are unjust laws. I would agree with St. Augustine that an unjust law is no law at all…

    I consider the laws against marijuana to be quite just and Godly. Your argument is thus defeated. How is that for your promotion of malditties!

  61. Castaigne says

    @Sok Puppette:

    Judges don't have the same political pressures that prosecutors do.

    Except in those areas, like mine, wherein judges are elected and are funded by one party or another.

  62. cpast says

    I thought plea deals always had some sort of agreement on what the sentence would be, so even without mandatory minimums the prosecutor and defendant would agree how many years he'd get (which would leave the prosecutor, who demands what the defendant has to agree to, with the ability to decide if the defendant ever leaves prison). Is that not how it works? And if it's "judges don't have to follow the plea deal if they think it's unreasonable," isn't that the case here as well?

    Also, I'm sort of confused why you'd *ever* agree to a plea deal where you'd spend the rest of your life in prison, unless the alternative was face execution. If you'll get 80 years under the deal and 105 if convicted at trial, why *not* take the risk?

  63. GuestPoster says

    Hmmm. Mandatory minimums, and prosecutorial 'overreach', are both interesting. On the one hand – yes. The prosecutor, once you've been accused and the law has chosen to focus upon you, has an INCREDIBLE amount of power to make your life very, very miserable. On the other hand – they still have to prove the case to a jury of your peers, which intrinsically limits their power (hopefully, anyways).

    Now, the Plea Bargain of course throws a wrench into this. After all, juries are not necessarily chosen for their brilliance or logic. So what a prosecutor, or defense attorney, can prove is less important than what they can convince a jury that they have proven. It doesn't matter if the DNA evidence proves something if the jury won't believe in DNA evidence. It doesn't matter how sketchy the eye-witness statement is if the jury thinks it's the word of god. So the Plea Bargain lets you grab a guarantee of something, rather than risk something much worse. And honestly, if it was used only as what it looks like it was intended to do – save tax dollars by getting criminals locked up on lesser charges, and keeping the over-busy courts free – it would be an easier case to make. But as is, Plea Bargains do seem to get a lot of use to lock up innocent people against whom a strong case happens to exist. Wrong place, wrong time – see you in 5 to 50.

    Which brings us back to minimums – arguably, they are a way to try and improve public behavior. And remember, this is all because society exists – we collectively agree upon what is acceptable, and what is not, and how to deal with what is not. By living in society, we agree to these terms implicitly. So the mandatory minimum is a way of saying 'if you violate rule X, and we catch you at it, you will suffer at LEAST penalty Y.' Which is, arguably, the reason judges shouldn't get to touch them – society decided, with their votes, what the penalty had to be, at a minimum. It would be unfair for just one man or woman to decide to override that. Of course, the voting public doesn't know all the details in advance – mandatory minimums should, in fact, be MINIMUMS, not huge numbers that make anything a judge might add all but irrelevant.

    It's easy to get into the mindset of a troll, and think 'oh gosh, they caught me doing something I don't think should be illegal, even though it is, and tried to lock me up for it. They suck!' But it's also easy to get into a mindset of 'gee, it sure is nice living in an apartment complex full of people who aren't criminals, because the folks who tried to rob me yesterday now live behind bars'.

    I think we need a better incentive system for prosecutors. I think we need to reward prosecutions that lead to rehabilitations and lowering of crime, rather than ones that simply put somebody behind bars for life, or behind bars until execution. But I have no ideas as to how we do that – so don't ask. But I think we're better off with some mandatory mins than without, and certainly better off with prosecutors, and a legal system, than with an anarchy that would still lack a justice system, even while we patted ourselves on the back and said 'at least we dodged the bullet of prosecutorial overreach!'.

  64. GuestPoster says

    @Cpast:

    Well, if it's the same prison, yeah, I'd risk the 105. But Pleas (at least on TV) are generally much more lucrative. In the case you suggest, I'd imagine there'd at least also be, say, an improvement of conditions (minimum security 80 years, versus max security 105). When you're never going to see a grocery store again, they can offer you quite a lot of benefits that would seem horrible to a person not facing the choice, but give you quite a lot to think about.

  65. Revenge Porn victim says

    Why does Ken White support James McGibney, who also runs a blackmail / revenge website and who has been sued many times in federal court, and who just got busted violating the Texas anti-SLAPP law? The things Hunter Moore did, the posting of the pics and the asking of money to take them down, is exactly what James McGibney, who runs Bullyville & Cheaterville, does. Whether the pics are nude or not nude is immaterial, in my opinion, because the motive for posting them (revenge, harassment, blackmail) is still the same. You must pay to remove pics on McGibney's website. Yet White seems strangely silent about all the federal and state lawsuits spinning around McGibney.

    Why is that, Ken? Do you also secretly support revenge & blackmail while wanting to publically appear all moral and just from your bully pulpit?

    Why haven't you and your blog weighed in on McGibney's and Jay Leiderman's abuse of the courts and their serial SLAPP suits?

  66. says

    Dear "Revenge Porn Victim":

    1. "You didn't write about X so you must support/endorse it" is a transparent fallacy.

    2. Actually I have written about Leiderman. I wrote about his SLAPP suit against a client I successfully represented pro bono.

    3. I don't know a lot about Mr. McGibney, but I've noticed he attracts a lot of nutjob opponents.

  67. NickM says

    And how would prosecutorial discretion in charging be eliminated? OK, besides going to trial by battle or ordeal for everything.

  68. Kilroy says

    @GuestPoster: The belief that "if it was used only as what it looks like it was intended to do – save tax dollars by getting criminals locked up on lesser charges", isn't very accurate. Within my experience and knowledge, the vast majority of plea agreements are made on the top charge, not some lesser charge. Lesser charges only offered when there are weaknesses to the case, which isn't very often.

  69. En Passant says

    Castaigne February 25, 2015 at 9:30 am:

    … Then why are you bothering to differentiate what you think is a "moral" or "immoral" crime, since it has no affect on the law? After all, you have committed an immoral crime, in my POV. You have distributed the pot, causing several people to become addicted to injecting bindles of the stuff and thus becoming churls and noddies.

    A well wrought Fisking is a thing of beauty. Unfortunately, factually failed Fisking forfeits to the Fiskee, and makes manifest further fouls of flaming and hand-waving.

    Although "churls and noddies" is a delightful turn of phrase, alone it cannot save the game.

  70. Pete says

    How about mandatory maximums? If you didn't cause anyone bodily harm, here's the grand total maximim time we can put you away (say, 15 years). If no-one died, here's the maximum grand total time we can put you away (say, 25 years). At least with such a system you don't get people like Aaron Swartz threatened with more prison time than he would have if he'd raped a classmate.

  71. MrBill says

    @Pete – an idea worth considering, I think. Under the Uniform Code of Military Justice, most crimes have a maximum punishment, but no minimum. It is possible (though no very common) to be convicted of a crime, but sentenced to no punishment – the idea being that, in an appropriate case, having a criminal conviction may be punishment enough. If it's good enough for our service members, why not for the rest of us?

  72. GuestPoster says

    Hmm, arguably the difference is that a military trial is NOT a civilian trial. There are very different rules, and so what works in one place won't work in another.

    THAT being said, yeah, I'd happily support legislation of mandatory maximums. Given how bloodthirsty Americans are in general, I imagine it would be very few and far between indeed that a voted upon maximum turned out to feel insufficient for a crime that ended up being committed. That being said – that's also why it might not work well. It works in the military because that's not a democracy – the heads come together and decide on appropriate rules, and that's it. Once you get people voting, especially for something like 'what's the worst we can do to punish X', they'll probably all just end up saying 'Death penalty!!!'. I'd like to be in a world where meaningful mandatory maximums could be made for average crimes. I just don't think that I am in such a world.

  73. The Unloginable says

    > 'what's the worst we can do to punish X', they'll probably all just end up saying 'Death penalty!!!'

    (Quoting from another blog, not linked, feel free to google)

    Chen Sheng was an officer serving the Qin Dynasty, famous for their draconian punishments. He was supposed to lead his army to a rendezvous point, but he got delayed by heavy rains and it became clear he was going to arrive late. The way I always hear the story told is this:

    Chen turns to his friend Wu Guang and asks “What’s the penalty for being late?”

    “Death,” says Wu.

    “And what’s the penalty for rebellion?”

    “Death,” says Wu.

    “Well then…” says Chen Sheng.

  74. A Critic says

    "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. "

    You should be. Prohibition is the crime.

  75. says

    Hey Ken,

    I think Moore did off like a bandit. I am surprised the prosecutor did not try to squeeze him for more time. What are your thoughts on Moore's case in the central district compared to Christopher Chaney case in the Central District. Chaney was snapped of for 10 years and moore is only getting two.

    On a side note. What does it feel like to give people outrageous sentence like 10 and 20 years or life? DO you always feel like your serving justice and protecting mankind?