From: tj_lists@prado.com
Date: Mon, 11 Mar 1996 00:19:38 +0800
To: Deranged Mutant <WlkngOwl@UNiX.asb.com>
Subject: Re: Another Motivation for the CDA (Federal Sentencing Guidelines)
Message-ID: <199603080654.WAA21592@zoe.prado.com>
MIME-Version: 1.0
Content-Type: text/plain


** Reply to note from Deranged Mutant <WlkngOwl@UNiX.asb.com> 03/07/96  7:06pm +0000

> Yes and no. Depends on the judge.  Some are hard-assed about granting  
> waivers, others aren't.  Part of the problerm is that judges have too  
                           ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^         
> much discretion.
^^^^^^^^^^^^^^^^^

Couldn't help noticing this, presume you mean Federal Judges since the
waiver would be from aspects of GCA 1968, a Federal law. The fact is, at
least in sentencing, Federal Judges now have very little discretion. The
Federal Sentencing Guideline structure established in the 1980's provides
"guidelines" for a given defendant convicted of a given set of charges. Things
like prior offenses add "points", ratting on your friends takes away "points".
In this case less is better than more. Anyway, a low level bureaucrat fills
out a presentence investigation report on the basis of complicated, arcane
rules it is easy to get wrong. This report goes to the judge who can pass
sentence only within a narrow range, say 6 months 1 way or the other on a
5 year sentence (very few new Federal "crimes" carry less than this). Any
departure from this range, either upward or downward, must be justified in a
formal opinion, & can be appealed by either party. Very few judges bother.
This system is cookie cutter in-justice at it's finest, & only a lack of
bureaucratic imagination has prevented it from being computerized beyond the
use of word processors to write the report.

Since well over 90% of Federal Criminal cases end in guilty pleas, this method
has the effect of transferring discretion that formerly belonged to the judge to
the prosecutor, who gets to pick from a variety of charges covering the same offense,
and the low level flunkey who gets to fill out the forms. This is exactly the big  
problem with the new "crime" of using encryption in a felony in the Leahy bill.  
Assuming for a moment this new law is tailored very narrowly & is only used on people  
who
1. Commit without governmental entrapment an underlying felony.
2. Exclusively use encrypted traffic in direct furtherance of the underlying felony,
(example: murder for hire is negotiated via encrypted messages)
there still remains the fact that this is simply another tool of prosecutorial  
discretion, of which there is way to much already. The problem with prosecutorial  
discretion is that it is always used to encourage snitching, turning this country
into a nation of Pavel Mozorov's (12 year old Hero of the Soviet Union who ratted out  
his parents to the Cheka for concealing a pig from collectivization. His uncles did as  
should be done in such cases & cut him up with an axe).

However, I do agree that in setting conditions other than fines & prison time, Federal  
Judges do have too much discretion. Chris Lambert (mthreat, Minor Threat) a 21 year old
Austin cracker now doing time in Bastrop FCI, as part of his sentence is forbidden to  
own or work with any computer w/ modem or network card/connection. This of course is to  
apply after he gets out. Traditionally, counterfeiters, who come from the ranks of  
printers, merely have to report to their parole officer & get his ok in order to own or  
go to work for a print shop.    

 



cc: cypherpunks@toad.com
    mthreat@paranoia.com