From: tj_lists@prado.com
Date: Fri, 8 Mar 1996 19:54:50 +0800
To: cypherpunks@toad.com
Subject: Re: Another Motivation for the CDA (Federal Sentencing Guidelines)
Message-ID: <199603080947.BAA21810@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.     
 
  



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