Sentencing is a curious thing. It’s there to serve certain recognized purposes, yet nothing in 18 USC §3553 tells us what makes one sentence appropriate and another excessive (or inadequate, for that matter). Whether framed in terms of months or years, it’s all just numbers at the time of sentence. As it’s served, it’s day after day after day, perhaps for the rest of a person’s natural life. Who knows what makes a sentence fit a crime?
Doug Berman at Sentencing Law and Policy ponders this when asking whether a guidelines sentence of 30 years for a computer hacker who was caught in possession of 1.8 million bank and credit card numbers is “ludicrous”.
Max Ray Vision, who legally changed his last name from Butler, had pleaded guilty in June to his role in an online clearinghouse where identity thieves shared stolen information. A self-taught computer whiz who fell in love with the devices as an 8-year-old boy in his father’s computer store, Vision told Senior U.S. District Judge Maurice B. Cohill Jr. that he was mesmerized by “the thrill of hacking, being addicted to it.”
Bespectacled, soft-spoken and articulate, the 37-year-old Vision told the judge he had changed and realizes what he did was wrong. “You probably hear that a lot, but it’s absolutely true,” he said.
Cohill’s sentence was based on a joint recommendation by federal prosecutors and Vision’s public defender, Michael Novara. Federal sentencing guidelines suggested a sentence of 30 years to life, which Novara called “ludicrous.”
Is it “ludicrous”? Prosecutors claimed a loss of $27.5 million, based on a calculation of $25 per number cost to banks for each stolen number. There was $86 million in fraudulent purchases traced to the numbers on the computer, and Vision netted about $1 million from selling numbers. Aside from restitution, the sentence imposed was 13 years. due in some part to Vision’s cooperation.
Doug doesn’t find the 30 year guidelines sentence nearly as ludicrous as Vision’s lawyer.
Doug doesn’t find the 30 year guidelines sentence nearly as ludicrous as Vision’s lawyer.
Given the facts of this case and the reality that, in the words of the prosecutor here, the “amount of damage a person can cause with a keyboard in this day and age is astronomical,” I am not so ready or eager to assert that the guideline-recommended sentence of 30 to life really was “ludicrous.” Let me explain.While I often find it difficult to put a finger on Doug’s sentencing philosophy, he’s made his position clear in this case. In the extreme case, extreme sentences are an acceptable fit. The general deterrence value of 30 years serves its purpose, as does the fist in the velvet glove to “gently persuade” the defendant to cooperate.
First, though maybe it is unfair to compare Max Ray Vision to Bernie Madoff, I do think it is reasonable to suppose that Vision may be among the “worst of the worst” financial hackers. If the “worst of the worst” Ponzi schemer earned himself 150 years in prison, is 30 years for the “worst of the worst” financial hacker really so out of whack? Moreover, I think the need for, and potential value of, general deterrence in this setting is pretty strong, especially with respect to others who may be inclined to join an “online clearinghouse where identity thieves shared stolen information.”
Finally, and perhaps most important, the threat of decades in prison no doubt was a primary reason Max Ray Vision was willing to plead guilty and has “continued to work with the government” to help bring down other financial hackers and identity thieves. Though few are eager to either admit or endorse the value of extreme guideline sentences to induce pleas and cooperation, the threat of extreme sentences always serves to grease the wheels of the criminal justice system.
From my perspective, the guidelines sentence should be measured differently. Initially, Bernie Madoff’s sentence should never be the bar by which others are measured, taking for granted that it was an appropriate sentence. Nothing has skewed the relationship between financial crime and sentence worse than the Madoff sentence, and it is the dangerous new constant in sentencing. This is not to trivialize what Madoff did, but to rationalize financial crime with other types of crime. Being the “worst of the worst” Ponzi Schemer still isn’t the equivalent of mass murder. We’ve run out of years when we start accepting the Madoff sentence as appropriate. The only sentence left is life plus cancer (h/t Jeralyn Merritt)
This was a financial crime. Certainly, it causes suffering by its victims, and it most assuredly has victims beyond the financial institutions that make stealing numbers easier than taking candy from a baby. But it isn’t murder. It isn’t rape. There has to be a differential of culpability between financial crime and violent crime. Without it, proportionality is lost. It’s not that a financial crime isn’t serious; it’s that it isn’t as serious as blowing up a building and killing a few hundred people. It isn’t as serious as a serial child rapist murderer. It’s just not as heinous, and yet we’ve compacted sentences to leave no room to distinguish between crimes of a very different nature. As I’ve suggested half-jokingly, the Ponzi schemers might as well as knocked off a few people along the way, since it wouldn’t have had any real impact on their sentence. There’s something very wrong with the fact that my joke smacks of reality.
As for the threat of excessive sentence serving what Doug finds to be the salutary purpose of inducing pleas and cooperation, the gap between our views widens exponentially. Pleas and cooperation are not inherently a good thing, particularly when coerced by a potential sentence that is so excessive that it will push a theoretically innocent defendant to forego trial rather than risk an adverse verdict, or say anything to cooperate and get the beloved 5K1.1 letter. The more excessive the sentence, the worse the impact on the exercise of rights and the adherence to the truth.
Some people assume that every guilty plea is legitimate and every cooperator is telling the truth and serving a societal interest. I do not. I know from experience that people plead guilty when they aren’t, or aren’t as guilty as the prosecution claims. They do so out of fear of consequences. This is fundamentally wrong, and an integral part of our system. It’s the natural by-product of excessive sentences, making it too risky to fight for those whose tolerance can’t take it.
It’s similarly true that people will cooperate, whether to lie about others or manufacture crimes so that they can “solve” them and get the prosecution to need them, to love them, to cut them a break. Why do young AUSAs believe that yesterday’s criminal is today’s totally honest cooperator? It may be enlightened self-interest, but that doesn’t make it truthful.
When a potential sentence serves as an incentive for the innocent to plead guilty, or liars to cooperate, then the system has failed.
By using the word “ludicrous” as the bar, Doug has set up the question in a way that makes it nearly impossible to dispute. Ludicrous is a very vague, very extreme bar to reach. If the question is whether a 30 year sentence for Vision is extreme under the criteria set forth in §3553, my answer is absolutely. Ten years is a lifetime to Vision, and any other hacker inclined to do what he did. Deterence will be achieved.
If the question is whether the sentence is so extreme as to shock the conscience, then I’m afraid not. Not because it shouldn’t be, but because extreme sentences have become so commonplace, so normal, that it’s almost impossible to find a sentence for a serious financial crime shocking anymore. And this, I fear, is what is truly ludicrous.
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I haven’t seen any security bloggers suggest that Vision’s sentence was “ludicrous,” but there is buzz about another case involving ID theft with dozens of victims. The judge handed down a 309 year sentence. Now, and without being a lawyer, I find *that* sentence ludicrous.
Maybe it is because I know murderers and child rapists, and I don’t know any people who have defrauded other of millions of dollars, that I don’t take it as such a given that their crimes are worse than those of the Madoffs of this world. Perhaps because, as most of us who do this job instinctually do, I view crimes from the perspective of the perpetrator rather than the aggrieved (to be clear, the victims in murders and rapes are harmed far more terribly than even those who lose their life savings), I realize that many murderers, and more so child molesters, ultimately didn’t have a whole lot of control over the final act that landed them in the crim justice system’s hand Meanwhile, guys like Madoff and this guy who has been a computer whiz since the age of 8 (while my IT department’s only requirement for employment is that you be rude and drool occasionally) had options. They chose to do what they did out of pure greed.
Maybe it is because I understand the urge of greed and I don’t understand the urge to molest (I do understand the urge to murder, but not in the way that many of the murderers I’ve known did) that I think the Madoffs failure to resist that urge is somehow more culpable, more worthy of draconian punishment. What excuse do they have?
Having seen it from both sides, I have a hard time distinguishing some (not all but some) financial crimes from ordinary business practices. Businesses exist to make money, and business people are in it for the money. I have a hard time feeling worse about the person who backdates options than I do about the electronics company whose products should last 5 years but fail after a year, with a one year guarantee. We’re surrounded by rip-offs, but most of them are perfectly lawful. It’s just greed, though some is rewarded and other is criminalized.
More often, these are fairly common industry practices that somebody just realized should be illegal, or somebody got a bug up his butt about a particular business or executive, and decided to come down hard. It doesn’t excuse bad practices, but let’s not pretend they are any more heinous than many, if not all, of their brethren. I’m neither a fan nor apologist for unlawful financial practices, but I do have a hard time when something done daily for years suddenly results in prosecution and sentence of one, while the rest continue without incident.
Right, but stealing people’s credit card information and selling it or persuading people to make investments in things you know don’t exist and will never make a return fall on a different side of the line.
As arbitrary as it is to draw, the line for me is between stealing a little from a lot (shareholders or consumers, which you can call the cost of doing business and something the market will hopefully straighten out over the long term), and stealing a lot from a few like Madoff and ID thieves do.
It’s not that I’m saying these aren’t crimes, but distinguishing financial from violent for the purpose of comparing apples to oranges.
It’s like this 10th Circuit decision where the court reduced the sentence from 330 years to 310. Party time? The numbers are symbolic as they clearly won’t be served.
When the sentence can, and will, be served, the numbers are real. Or as Doug Berman was quoted in the WSJ Law Blog as saying:
But for the person whose sentence will in fact be served, the number, irrational or not, are very real.
Ok, but even had the judge sentenced him to a “mere” 75 years — for ID theft and wire fraud, etc.? Doesn’t that sound ludicrous to you, Scott?
This type of sentencing insanity doesn’t make me feel good. As a member of the public, every time judges issue sentences that are not served in their entirety, it erodes trust and faith in the system. I’d rather they handed out smaller sentences and enforced them.
Ludicrous is a big enough word to cover a lot of ground.