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.
Regardless of whether you think a mandatory minimum of two years, with the potential for significantly more, is adequate retribution, his sentencing guidelines at level 8 would have otherwise essentially assured him a sentence of probation. Instead, he’ll get prison.
This is the product of a charging decision by the prosecutor:
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.
Notwithstanding the guidelines, the aggravated identity theft charges carry a mandatory minimum, which trumps whatever sentence the guidelines would otherwise have provided. For those who would have Moore sentenced to life plus castration, this is both good and bad. At least he will go to prison (and not, as lawprof Danielle Citron mistaken claimed, jail), but perhaps not long enough to sate their hatred.
While this couldn’t have happened to a nicer guy, Ken’s point is that this prison sentence won’t be mandated by the sentencing judge, so much as a prosecutor who exercised his charging power to use a crime that carried a mandatory minimum. Sure, this time many will applaud the exercise, because the defendant is despicable. The ends justify the means, as long as we like the ends.
But Ken makes a larger point.
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.
A serious crime in the hands of a “rookie” prosecutor. Nothing out of the ordinary here. Note that the bank robbery isn’t the big problem, but rather the gun used and carried in the course of the bank robbery that makes all the alarm bells go off. In our anti-gun frenzy, mandatory minimums for the gun overcame the underlying crime, and they were deliberately severe.
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.
The decision of this baby prosecutor, as approved by his supervisor, would tie the court’s hands on sentence. The only option remaining for the defendant, should he refuse the plea, was to go to trial, where, if convicted, he would get hammered with the enhancement for all five bank robberies, resulting in a 105 year minimum sentence, plus a week or two for the bank robberies.
Bear in mind that the defendant, perhaps not an angel at his best, was a heroin addict. driven to rob to pay for his fix. Even now, Ken is less than sympathetic about his addiction, though one may wonder whether rehab and education would have been a far more enlightened use of government money.
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?
While some might argue that no person, no human being, possesses sufficient wisdom to wield this much power over another, the fact is that crime happens, and its a bad thing. People who commit crimes ought to be arrested, prosecuted and, in some manner, punished. But who should decide what punishment best serves societal interests?
Ask a prosecutor, and most will tell you that they did their best to exercise their power in a way that is good for society. Of course, self-assessment is notoriously unreliable, but other prosecutors will bolster their decisions and explain why some “callow, righteous, and stupid in a highly educated way” kid prosecutor’s decision was absolutely proper.
This is what we’re talking about when we speak of the power in a prosecutor’s hands to dictate sentence. Senator Chuck Grassley, Republican of Iowa, explained in a letter to the editor of the New York Times the critical importance of putting this power in the hands of prosecutors to dictate severe mandatory minimums to obtain “the necessary cooperation” and “ensure that judges impose adequate and more uniform sentences.”
And that power is exercised by the prosecutor, even if he happens to be a 26-year-old “callow, righteous, and stupid in a highly educated way” kid. It may seem pleasing because of the Hunter Moore deal, because he’s so despised. The price is that it’s the same when the defendant isn’t Hunter Moore, isn’t so despised.