Minneapolis Police Officer Derek Chauvin Sentenced To Twenty-Two Years For Killing George Floyd

from the beating-out-his-19-years-as-a-cop-by-a-narrow-margin dept

The police officer who set off months of anti-police violence protests has been sentenced to more than 22 years in prison. Minneapolis police officer Derek Chauvin was found guilty of murdering George Floyd by kneeling on his neck for nearly ten minutes… and for more than two minutes after another officer said he couldn't detect a pulse.

This murder was carried out in broad daylight in front of several witnesses. Perhaps the most important witness was the one who filmed the entire killing: 17-year-old Darnella Frazier. Largely because of this recording, Chauvin was unable to elude justice.

Two months after Chauvin's conviction on murder charges, Judge Peter Cahill has handed down a sentence nearly a decade longer than the 10-15 years recommended by state sentencing guidelines. This sentence is far more than Chauvin's lawyer felt was justified. His attorney asked for time served and probation. (Chauvin had been incarcerated for 199 days by the time he was sentenced.) But it's also less than what prosecutors had asked for: a 30-year sentence based on several aggravating factors.

Judge Cahill didn't just hand down a sentence. He also issued a written order [PDF] explaining his decision to depart upwards from the sentencing guidelines. The order is thorough. And the list of aggravating factors includes the public nature of this killing and a reference to the witness who filmed the incident, creating an undeniable version of the facts that made it impossible for Chauvin to walk away from this.

Here's the short version of the court's explanation for its sentencing variance:

[T]he Court found that the evidence at trial proved beyond a reasonable doubt the following four aggravated sentencing factors:

(i) That Mr. Chauvin abused a position of trust and authority;

(ii) That Mr. Chauvin treated George Floyd with particular cruelty;

(iii) That children were present during the commission of the offense;

(iv) That Mr. Chauvin committed the crime as a group with the active participation of three other individuals, former Minneapolis Police Officers Thou Thao, Thomas Lane, and J. Alexander Kueng, who all actively participated with Mr. Chauvin in the crime in various ways.

These are presented in more detail later on in the order.

Mr. Chauvin “abused his position of authority” by using unreasonable force to hold “a handcuffed George Floyd in a prone position on the street”—“a position that Defendant knew from his training and experience carried with it a danger of positional asphyxia”—for more than nine minutes and forty seconds, “an inordinate amount of time.”

“Defendant’s placement of his knee on the back of George Floyd’s neck was an egregious abuse of the authority to subdue and restrain because the prolonged use of this maneuver was employed after George Floyd had already been handcuffed and continued for more than four and a half minutes after Mr. Floyd had ceased talking and had become unresponsive.”

[...]

That “failure to render aid became particularly abusive after Mr. Floyd had passed out, and was still being restrained in the prone position, with Mr. Chauvin continuing to kneel on the back of Mr. Floyd’s neck with one knee and on his back with another knee, for more than two and a half minutes after one of his fellow officers announced he was unable to detect a pulse.”

Also factoring into the upward variance is the fact that this was no ordinary killing. As the court points out, this was an protracted, painful experience that ended in death -- one that was far crueler than the acts normally associated with murders and assaults.

Mr. Chauvin’s prolonged restraint of Mr. Floyd was also much longer and more painful than the typical scenario in a second-degree or third-degree murder or second-degree manslaughter case. The “prolonged nature of the asphyxiation” makes this offense different in kind than, for example, a near-instantaneous death by gunshot, which is one typical scenario for this type of offense.

[...]

The conduct this Court has deemed particularly cruel also occurred over a longer period and was substantially more painful than a typical third-degree assault, the predicate felony offense for Mr. Chauvin’s second-degree murder conviction. [...] . Chauvin’s conduct went beyond just inflicting “substantial bodily harm.” It “kill[ed] George Floyd slowly”—over the course of almost ten minutes—by inhibiting “his ability to breathe when Mr. Floyd had already made it clear he was having trouble breathing.” Indeed, Mr. Chauvin’s continuation of the assault after Mr. Floyd was no longer conscious and no longer had a pulse—Mr. Chauvin “continu[ed] to kneel on the back of Mr. Floyd’s neck . . . for more than two and a half minutes after one of his fellow officers announced he was unable to detect a pulse”—plainly sets Mr. Chauvin’s conduct apart from the typical case involving a felony assault that results in substantial bodily harm and death to the victim.

For that, the judge tacks on another ten years. Chauvin -- the second Minneapolis police officer to be convicted of murder in the last two years -- will spend most of the next 15 years in jail and another eight years under supervised release. Nothing done here will bring George Floyd back to life. But the court's willingness to depart upwards when sentencing a former cop should hopefully act as a deterrent towards future police violence.

Filed Under: derek chauvin, george floyd, police brutality, sentencing

Creator Of Silk Road 2.0 Did Double The Business, Sentenced To Only Five Years In Prison

from the that's-like-three-lifetimes-in-the-US dept

In 2015, the man behind darknet drug marketplace Silk Road, Ross Ulbricht, received two consecutive life sentences from a New York judge. Her rationale was that Ulbricht was no different than a "dangerous Bronx drug dealer." No leniency was given. The government, which participated in its own share of misconduct during the investigation, argued Ulbricht should be personally financially-responsible for every drug transaction on the Silk Road: a total of $184 million.

The government got its win -- all of it. But it was only temporary. Silk Road 2.0 swiftly took the original's place, run by another young man who knew he was going to be pursued by law enforcement across the world as soon as he fired it up. Long before it was shut down, Silk Road 2.0 was double the size of the original Silk Road, proving once again that sellers and buyers of illicit substances will find each other, no matter how many roadblocks governments erect.

The operator of this marketplace was arrested in San Francisco -- just like Albricht was. But that's where their stories drastically diverge. For one, the person arrested in San Francisco was not the founder of Silk Road 2.0. That title belonged to Dread Pirate Roberts 2 (DPR2). That person, Thomas White, was arrested by the UK's National Crime Agency.

Unlike Ulbricht's prosecution -- which played out in public thanks to our justice system's presumption of openness -- White's prosecution occurred in secret, shielded from the public eye by UK law. White was arrested in 2014, but his sentence has only now been handed down. Ulbricht got two life sentences and $184 million in fees from a US court for running the Silk Road. The creator of Silk Road 2.0 -- doing double the business of Silk Road 1.0 at its peak -- is looking to be out of prison years before his inspiration sees freedom.

[A] court in Liverpool, England, sentenced Thomas White, a technologist and privacy activist, for crimes committed in part while running Silk Road 2 under the DPR2 persona, among other crimes committed under another persona. White pleaded guilty to drug trafficking, money laundering, as well as making indecent images of children, and was sentenced to a total of 5 years and 4 months in prison.

There's your compare-and-contrast. In the US, drug crimes are the worst crimes. In the UK, crimes are crimes and the rehabilitation prisons can't provide are recognized and people are sentenced accordingly. I'm sure the DOJ is marveling at this miscarriage of justice and wondering why they bothered pitching in with an investigation that only resulted in a 5-year prison sentence.

And where Ulbricht spent his time locked up pretrial, thanks to the government getting his bail denied because of two murder-for-hire charges it later dropped, Thomas White spent his time out in the open with access to a computer. As Joseph Cox points out, White was pretty well-known in the world of security research, thanks to contributions he made while awaiting trial and sentencing.

On Twitter he mused about security and privacy topics, and has appeared under his own name in articles in Motherboard, Forbes, and more as an expert on Tor and other subjects. He previously ran a website archiving large data breaches that anyone could download, including the MySpace breach, data from hacked affairs website Ashley Madison, and customer information from a Muslim-focused dating site called ‘Muslim Match.’

Our government argues lengthy sentences for drug cases are needed to deter others from drug dealing. Seeing how quickly the new Silk Road replaced Ulbricht's version makes it clear lengthy sentences aren't deterring anything. I'm not even sure the DOJ believes its own bullshit at this point. Prison is punishment and our system is set up to provide as much punishment as possible in every case. Other places in the world recognize the limited societal value of taking decades away from people for selling products people want to buy.

Filed Under: dread pirate roberts 2, sentencing, silk road, silk road 2.0, thomas white, uk, us

Federal Prosecutors Recommend Paul Hansmeier Spend The Next 12 Years In Prison

from the not-so-clever-Hans-heads-for-the-federal-glue-factory dept

Cue the Ron Paul "It's Happening!!!!" gif. The wheels of justice have been grinding away for years now, but they've finally generated several years for longtime copyright troll/supervillain Paul Hansmeier. After making a career out of extorting settlements from alleged porn-watching infringers, extorting settlements from small businesses with bogus ADA complaints, attempting to hide his wealth from his creditors (some of which were owed money for sanctions imposed in copyright trolling cases), and otherwise putting on a one-man show entitled "Why We Hate Lawyers," Hansmeier is facing the possibility of spending the next decade in prison.

The sentencing recommendation [PDF] prepared by the prosecutors has nothing good to say about Hansmeier. In fact, the prosecutors make it clear they'd have given him even more than the 12+ years they've recommended. (h/t Virgil Abt)

Here are the numbers:

As reflected in the report, the appropriate guidelines range for Paul Hansmeier is 135 to 168 months in prison.

And here's the reasoning for the lengthy sentence:

Paul Hansmeier was the driving force behind this massive scheme. It was Hansmeier who came up with the idea to construct a copyright settlement mill focused on pornographic films. It was Hansmeier who directed his brother to upload clients’ movies onto file-sharing websites to lure downloaders. It was Hansmeier who drafted nearly all of the legal pleadings used to deceive judges. It was Hansmeier who invented phantom hacking allegations. And it was Hansmeier who lied to judges, dissembled in depositions, and coerced others to conceal the truth.

The government says John Steele was basically the muscle -- an intimidating figure who also handled the bookwork for the scheme. But it was Hansmeier who did the dirtiest of the dirty work. And as such, he should be dealt with more harshly. And this is hardly the end of the government's summary of Hansmeiers' dirty work. The filing continues in this fashion for several pages -- a fitting tribute to Hansmeiers' scamsmanship.

The headings alone indicate the depth of Hansmeiers' grift.

Hansmeier repeatedly deceived courts

Hansmeier and Steele owned and controlled the plaintiffs

Hansmeier invented allegations of hacking

Hansmeier protected himself by using proxies

The details interspersed between these headings are devastating in their description of Hansmeier and his long-running fraud.

Hansmeier concealed from the courts that he filmed and produced much of the pornography in this case himself, not for commercial distribution, but for the sole purpose of using the resulting pornographic movies as bait.

[...]

Hansmeier compounded his egregiously disgraceful misuse of Judge Bransford’s subpoena authority by lying directly to her face in open court…

[...]

Hansmeier hid the fact that he and his codefendant, John Steele, were the attorneys responsible for filing every fraudulent copyright infringement lawsuit in this case. Hansmeier and Steele recruited an alcoholic and now-deceased Chicago attorney named Paul Duffy to serve as the putative owner of “Prenda Law,” the firm that represented AF Holdings, Ingenuity 13, and the other sham plaintiffs in the various copyright cases.

[...]

[W]hen courts around the country sought to hold Hansmeier responsible for the fraud and damages he had wrought, Hansmeier resorted to perjury and suborning perjury to escape blame and retain the proceeds of the scheme. Hansmeier and Steele swore out false declarations, gave false testimony in depositions and at court hearings, and caused Lutz to do the same…

[...]

Even after Judge Wright’s widely-read order sanctioning Hansmeier, Hansmeier continued to hide the money he gained through the fraudulent scheme. Hansmeier transferred money into his new law firm, Alpha Law, into accounts controlled by his wife, Padraigin Browne, and a sham trust called “Monyet,” and then filed a fraudulent bankruptcy case concealing the fact that Hansmeier retained control over a substantial amount of the proceeds of his fraud case.

The whole recommendation is a depressing read simply for the fact this scam went unimpeded for so long. The government wraps up this ugly narrative with its recommended sentence, but only after offering this last appraisal of Paul Hansmeier.

In summary, Hansmeier was greedy, arrogant, devious, mendacious, and consistently positioned other people to be damaged by his conduct, even as he enjoyed the proceeds of the scheme he orchestrated. Even now, Hansmeier continues to accept responsibility only in conditional terms, hoping to convince the appeals court that his shocking abuse of his position of trust as a Minnesota attorney, and an officer of its courts, was somehow legal.

The government says its final call is 150 months, but the footnote attached indicates the government would have handed out so much more if it had not already agreed not to.

In the plea agreement, the government agreed not to recommend a sentence above 150 months.

Twelve years is a lot of time. But Hansmeier appears to have earned every day of it.

Filed Under: copyright troll, doj, john steele, paul hansmeier, sentencing
Companies: prenda, prenda law

Analyst Who Accidentally Leaked NSA Software Given Five More Years In Prison Than General Who Handed Classified Info To His Mistress

from the 'somebodies'-score-another-win-over-the-'nobodies' dept

An NSA employee will be headed to prison for inadvertently exposing the agency's malware stash.

Nghia Hoang Pho, 68, of Ellicott City, Maryland, and a naturalized U.S. citizen originally of Vietnam, was sentenced today to 66 months in prison, to be followed by three years of supervised release, for willful retention of classified national defense information. According to court documents, Pho removed massive troves of highly classified national defense information without authorization and kept it at his home.

Pho's leaks were different than other NSA leaks. First reported last year by a couple of press outlets, the NSA TAO (Tailored Access Operations) tools were exposed to the outside world by anti-virus software , which correctly labeled it as malware. These malware samples drew the attention of hackers who then targeted Pho's laptop to exfiltrate NSA hacking tools. The NSA exploits and malware made their way into the public domain, kicking off a crippling wave of ransomware that has since been repurposed to mine for cryptocurrency on infected computers.

The DOJ's press release has a lot to say about the seriousness of the offense and the seriousness of the FBI in tracking down government employees who carelessly handle classified code. In particular, it offers up this self-serving garbage to justify locking someone up for taking their work home with them.

“Pho’s intentional, reckless and illegal retention of highly classified information over the course of almost five years placed at risk our intelligence community’s capabilities and methods, rendering some of them unusable,” said Assistant Attorney General Demers. “Today’s sentence reaffirms the expectations that the government places on those who have sworn to safeguard our nation’s secrets. I would like to thank the agents, analysts and prosecutors whose hard work brought this result.

This sentence does nothing of the sort. To those not closely watching these things (i.e., people who'd never read this press release in the first place), it may seem like the DOJ is serving up justice. But for those of us who've seen certain people -- like General Petraeus -- mishandle classified info in a much more egregious fashion (giving his mistress, and biographer, access to top secret info) and walk away from it pretty much unscathed, this statement from the DOJ is not just hollow. It's hypocritical.

Even the judge handling the case saw through the DOJ's double standard. Josh Gerstein of Politico reports the judge had plenty to say about the DOJ's prosecutorial efforts, especially in light of the fact Pho never directly gave anyone else access to the NSA's classified hacking stash.

[O]ne of the most striking aspects of Tuesday's sentencing was [Judge George] Russell's lament that top government officials seem to have escaped with little more than a slap on the wrist for engaging in similar behavior.

Russell seemed particularly perturbed that former CIA Director David Petraeus managed to get probation after admitting he kept highly classified information in his home without permission, shared it with his girlfriend and lied to investigators.

"Did he do one day in prison?" the clearly frustrated judge asked. "Not one day. ... What happened there? I don't know. The powerful win over the powerless? ... The people at the top can, like, do whatever they want to do and walk away."

It's nice to hear this from a judge, even if there's nothing the judge can actually do about it. Russell could only sentence Pho, not clawback Petraeus' unearned freedom and post-conviction cakewalk. Judge Russell might be less willing to help the government apply its sentencing double standard in the future, but his statements to the DOJ have probably only assured the agency will try to steer clear of his court in the future.

Filed Under: classified info, david petraeus, double standards, high court, leaks, low court, nghia hoang pho, nsa, nsa tao, sentencing

Reality Winner Will Spend Five Years In Jail For Leaking Info Government Officials Released Publicly

from the putting-heads-on-pikes dept

The opening sentence of US Attorney Bobby L. Cristine's statement on leaker Reality Winner says it all, even if it's not exactly how Cristine wants it to be read.

The sentence rendered today is the longest received by a defendant for an unauthorized disclosure of national defense information to the media.

This is the longest sentence ever imposed under the Espionage Act. And it's being imposed for a leaked document confirming much of what had been been discussed publicly by intelligence officials: that Russia interfered with the 2016 election. Winner will spend five years in jail for leaking information other government officials have published in full.

Espionage charges are easy to prosecute. The defendant's options are limited. They're unable to raise defenses about serving the public interest or acting as whistleblowers. This was document turned over to a media agency. This was not a document detailing crucial national security matters being handed to agents of an unfriendly government.

Winner isn't a martyr, but neither is she the despicable villain portrayed in the DOJ's official statement on its easy win. Twice the statement reminds us her act was not a "victimless crime." In case we're unable to get the point, it's delivered in all caps once. Bold print highlights various incidentals the US Attorney thinks are particularly nefarious -- like Winner KNOWINGLY disseminating a document with TOP SECRET printed across the top of it even though it EXPOSED SOURCES AND METHODS and it will apparently take the US intelligence community years to recover.

The DOJ's happy it won this case. The press release is devoid of the usual dry language about US codes violated and other boilerplate. Instead, the bulk of it sounds defensive, as if the DOJ expects backlash and is hoping to get out in front of it. This is all extraneous, but it's all in there for a reason: there's a message being sent to leakers and whistleblowers and it isn't subtle. [emphasis and ALL CAPS in the original]

Winner’s exceptionally damaging disclosure was not a spontaneous, unplanned event, but was the calculated culmination of a series of acts. She researched whether it was possible to insert a thumb drive into a Top Secret computer without being detected, and then inserted a thumb drive, WHICH THE GOVERNMENT NEVER RECOVERED, into a Top Secret computer. She researched job opportunities that would provide her access to classified information. At the same time, she searched for information about anti-secrecy organizations, and she celebrated claimed compromises in U.S. classified information.

Approximately eight days before she started work as a contractor with a security clearance, Winner installed sophisticated software tools on her computer designed to render her internet activity anonymous and untraceable. Two days before starting work, Winner captured an image of a webpage listing eight “securedrop” addresses for media outlets seeking leaked information. Then, her first day on the job, she sent messages mocking her security training. On that same day, Winner signed a non-disclosure agreement with the government in which she promised to keep secret classified information, and attested she was accepting this responsibility “…without any mental reservation or purpose of evasion.” Yet, she wrote shortly thereafter that she was “#gonnafail” her polygraph examination when asked if she had “ever plotted against” the government. She claimed to hate America. When asked, “…you don’t actually hate America, right?” she responded, “I mean yeah I do its literally the worst thing to happen on the planet.”

On and on it goes in this fashion until it reaches a slightly more subtle point, but one that's far more important.

Resolving this case with a plea agreement involving a lengthy prison sentence is the best resolution for the United States. The United States has to balance the need for prosecution with the damage that further disclosure of classified information at trial might cause. Proving the government’s case at trial would require the government to declassify or risk disclosure of TOP SECRET//SCI information. This plea affords the government a substantial benefit in protecting from disclosure information that is still classified. The FBI and members of the Intelligence Community affected by Winner’s treachery and betrayal have concurred in this judgement.

The DOJ needed this plea deal. It needed it far more than it needed anything else. During the prosecution, the government went out of its way to block any submission of classified/top secret documents as evidence, negatively affecting Winner's ability to mount a successful defense. This explains the aggressiveness of the prosecution. Winner needed to believe she'd spend a couple of decades behind bars in order for her to accept the longest sentence ever handed to a document leaker under the Espionage Act.

If the government's inner workings have a chance of being exposed in open court, the DOJ is either going to turn the screws or cut the defendant loose. With the administration engaged in a war on leakers, the DOJ wasn't going to cut its losses by settling for a slap on the wrist. Winner gets the full force of the DOJ's prosecution because anything less might have made the national security apparatus a tiny bit more transparent.

Filed Under: classified info, espionage act, leaks, reality winner, russia, sentencing, whistleblowing

State Supreme Court Says Secret Software Used In Sentencing Determinations Not A Violation Of Due Process Rights

from the not-as-long-as-it's-used-perfectly-within-an-impossible-set-of-confines dept

An algorithm is deciding certain criminal defendants should spend more time in prison. And that determination can't be fully challenged because the code belongs to a private company which provides the software to the government.

Eric Loomis was determined to be a "high risk" defendant, based on something called a "COMPAS score." COMPAS -- Criminal Offender Management Profiling for Alternative Sanctions -- cranks out Presentence Investigation Reports for use in the courtroom, utilizing a number of factors to generate a score that lets judges know how likely the defendant is to re-offend.

The problems with this system are numerous. For one, the code is proprietary, so defendants aren't allowed to examine the factors that lead to this determination, unlike other sentencing guidelines created by the government, which are open to the public to examine.

Another problem is that the algorithm engages in demographic profiling -- generally considered to be a bad thing when it comes to determining criminal behavior.

Back in May ProPublica published an investigation into the risk-assessment software that found that the algorithms were racially biased. ProPublica looked at the scores given to white people and black people and then whether the predictions were correct (by looking at whether they actually committed or didn’t commit crimes); they found that in Broward County, Florida, which was using software from a company called Northpointe, black people were mislabeled with high scores and that white people were more likely to be mislabeled with low scores.

"Fits the profile" is the new "fits the description" -- something that seems predisposed to putting blacks behind bars more frequently and for longer periods of time. Eric Loomis tried to challenge his COMPAS score but got nowhere with it, as the math behind it is locked up by Northpointe, which claims giving a defendant access to its trade secrets would pose a serious risk to its profitability.

Loomis argued that not giving him access posed a serious risk to his freedom. Allowing Northpointe to keep its algorithm secret was a violation of his due process rights, as it presented an unchallengeable score that could be used to keep him locked up longer than the normal range for the criminal activity he was convicted for.

His case went up the ladder to the Wisconsin Supreme Court, which has found [PDF] that defendants being unable to fully challenge a sentencing determination isn't a Constitutional problem.

Ultimately, we conclude that if used properly, observing the limitations and cautions set forth herein, a circuit court's consideration of a COMPAS risk assessment at sentencing does not violate a defendant's right to due process.

We determine that because the circuit court explained that its consideration of the COMPAS risk scores was supported by other independent factors, its use was not determinative in deciding whether Loomis could be supervised safely and effectively in the community. Therefore, the circuit court did not erroneously exercise its discretion. We further conclude that the circuit court's consideration of the read-in charges was not an erroneous exercise of discretion because it employed recognized legal standards.

Accordingly, we affirm the order of the circuit court denying Loomis's motion for post-conviction relief requesting a resentencing hearing.

The downside of this decision is that Northpointe cannot be forced to hand over its algorithm for examination by criminal defendants. The upside is that the court has issues with using COMPAS scores to determine sentence lengths.

[T]he opinion comes with some interesting caveats about things judges need to keep in mind when using risk scores in sentencing decisions: The two most important factors they’re asked to keep in mind is that software has been found to be racially biased and that the software needs to be constantly monitored and updated with new information. (If you’re relying on data from five or ten years ago, it’s not going to be accurate.)

The court also notes in passing that the software was never intended to be used to determine sentence lengths. It was supposed to used by the Department of Corrections to assess risks posed by parolees or those requesting parole. But it does not go so far as to forbid the use of COMPAS scores in sentencing decisions. Nor does it suggest that opening up the algorithm for examination might bring much-needed transparency to the sentencing process. Instead, the Supreme Court says judges must walk a very fine line when utilizing COMPAS scores.

The queasiness that judges feel about algorithmic risk-assesment is reflected in the concurring opinion filed by Justice Patience Drake Roggensack. “Reliance would violate due process protections,” she writes. “Accordingly, I write to clarify our holding in the majority opinion: consideration of COMPAS is permissible; reliance on COMPAS for the sentence imposed is not permissible.”

Unless a whole lot of judicial explanation accompanies every sentencing decision utilizing a COMPAS score, it's going to be almost impossible for defendants to tell whether a judge has just "considered" Northpointe's presentence investigation reports… or "relied" on them. Any sentence not hitting the upper end of the software's recommendations could be viewed as mere "consideration," even if "reliance" might be a more accurate term.

Without being allowed to closely examine COMPAS scores, defendants still aren't being given a chance to challenge any erroneous information that might be included in these reports. The court's reluctance to fully endorse the use of the software in sentencing decisions is a step forward, but it still allows judges to hand down sentences based on secret formulas that have already shown a predilection for recommending longer sentences to certain demographic groups.

Filed Under: algorithms, compas, due process, sentencing, wisconsin

Proprietary Algorithms Are Being Used To Enhance Criminal Sentences And Preventing Defendants From Challenging Them

from the like-the-Coke-formula,-but-for-years-of-someone's-life dept

When law enforcement agencies want to know what people are up to, they no longer have to send officers out to walk a beat. It can all be done in-house, using as many data points as can be collected without a warrant. Multiple companies offer "pre-crime" databases for determining criminal activity "hot spots," which allow officers to make foregone conclusions based on what someone might do, rather than what they've actually done.

Not that's it doing much good. For all the time, money, and effort being put into it, the databases seem to be of little utility.

Many law enforcement agencies use software to predict potential crime hot spots, and the police in Kansas City, Mo., and other places have used data to identify potential criminals and to try to intervene.

[...]

In Chicago, where there has been a sharp rise in violent crime this year, the police have used an algorithm to compile a list of people most likely to shoot or be shot. Over Memorial Day weekend, when 64 people were shot in Chicago, the police said 50 of the victims were on that list.

So much for "intervention." Having a list of people who have a higher risk of being shot doesn't mean much when all it's used for is confirming the database's hunches. However, these same databases are being put to use in a much more functional way: determining sentence lengths for the criminals who have been arrested.

When Eric L. Loomis was sentenced for eluding the police in La Crosse, Wis., the judge told him he presented a “high risk” to the community and handed down a six-year prison term.

The judge said he had arrived at his sentencing decision in part because of Mr. Loomis’s rating on the Compas assessment, a secret algorithm used in the Wisconsin justice system to calculate the likelihood that someone will commit another crime.

We're locking up more people for more years based on criminal activity they'll no longer have the option of possibly performing. This is nothing new. Sentencing enhancement is based on a lot of factors, not all of them confined to proprietary databases. But what is new are the algorithms used to determine these sentence enhancements, most of which belong to private companies who are completely uninterested in sharing this crucial part of the equation with the public.

In Mr. Loomis' case, the software determined he would be likely to engage in further criminal activity in the future. A so-called "Compas score" -- provided by Northpointe Inc. -- resulted in a six-year sentence for eluding an officer and operating a vehicle without the owner's consent. His lawyer is challenging this sentence enhancement and going after Northpointe, which refuses to release any information about how the Compas score is compiled.

What Northpointe has released are statements that confirm the code is proprietary and that the Compas score is "backed by research" -- although it is similarly unwilling to release this research.

The problem here isn't so much the use of algorithms to determine sentence lengths. After all, state and federal guidelines for sentence lengths are used all of the time during sentencing, which includes factors such as the likelihood of future criminal activity. But these guidelines can be viewed by the public and are much more easily challenged in court.

The use of private contractors to provide input on sentencing renders the process opaque. Defendants can't adequately challenge sentence enhancements without knowing the details of the "score" being presented by prosecutors to judges. The algorithms' inner workings should either be made available to defendants upon request, or the "score" should be determined solely by government agencies, where the data and determining factors can be inspected by the public.

We're now in the unfortunate situation where companies are telling judges how long someone should be locked up -- using data which itself might be highly questionable. The feeling seems to be that if enough data is gathered, good things will happen. But as we can see from Chicago's implementation of this technology, the only thing it's done so far is add confirmation bias toetags to the ever-increasing number of bodies in the city's morgues.

The use of locked-down, proprietary code in sentencing is more of the same. It undermines the government's assertion that prison sentences are a form of rehabilitation and replaces it with the promise that criminal defendants will "do the time" so they can't "do the crime" -- all the while preventing those affected from challenging this determination.

Filed Under: compas assessment, crime, predictions, proprietary algorithms, repeat offenders, sentencing, thought crimes
Companies: compas

UK Gov't Pushing For 10-Year Jail Sentences For Copyright Infringement Based On ¯\_(ツ)_/¯

from the faith-based-policy dept

For many years, we've pointed out that so much policymaking around copyright law is what we'd argue to be purely "faith-based." The fact that there is little to no actual evidence that stronger copyright protections lead to better outcomes for the public, the economy or for society is ignored by people who just know it must be true. And the constant assertions about extending and expanding copyright always seem to come from this same faith-based positioning. An exploration into the empirical basis for copyright law finds that there basically is none and the reason we have copyright is because a couple of centuries ago some people thought it was a good idea, and no one's really bothered to check since then.

One of the most ridiculous examples of this "faith-based" reasoning is the belief, among many, that the way to stop widespread copyright infringement is just to increase the punishment for those who are caught. Sure, you can understand the armchair economists' reasoning here: if you increase the punishment, you're increasing the "cost," which should decrease the activity. But, that's just wrong on many, many levels. First, let's take a step out of the copyright realm and into the criminal justice realm. After vastly expanding punishment (via things like "three strikes" laws), many, many people (even those who supported such programs) are now admitting that long sentences don't actually do much to deter crime. While there were some studies in the 80s and 90s suggesting long sentences reduce crime, more recent (and much more thorough) studies have basically rejected that view. A recent survey of many studies in the area found little support for the idea that longer sentences deter criminal activity.

A bunch of other, even more recent, studies agree. A massive report from the University of Toronto goes through the history of the support for harsher sentencing, and a ton of historical and modern research, and concludes:

At this point, we think it is fair to say that we know of no reputable criminologist who has looked carefully at the overall body of research literature on “deterrence through sentencing” who believes that crime rates will be reduced, through deterrence, by raising the severity of sentences handed down in criminal courts.

The evidence supporting this conclusion has been accumulating for decades. In the 1970s, thoughtful reviewers were cautious in their conclusions, suggesting only that the deterrent impact of harsh sentences had not been adequately demonstrated. More recently, we, and others, have been more definitive in our conclusions: crime is not deterred, generally, by harsher sentences.

Another major study, from two years ago, by the National Research Council more or less says the same thing: "the evidence base demonstrates that lengthy prison sentences are ineffective as a crime control measure." Another recent research report, which also delves deeply into the arguments from the 70s and 80s now concludes: "The empirical work of the past thirty-five years has presented evidence that some of the deterrence we thought that we were likely to get was not, in fact, forthcoming.... " Hell, even the National Institute of Justice, the "evaluation" agency that's a part of the US Justice Department (which regularly pushes for harsher punishment) says directly on its website:

Increasing the severity of punishment does little to deter crime.

Laws and policies designed to deter crime are ineffective partly because criminals know little about the sanctions for specific crimes. Seeing a police officer with handcuffs and a radio is more likely to influence a criminal’s behavior than passing a new law increasing penalties.

That same page further notes that "sending an offender to prison isn't a very effective way to deter crime."

At this point, you have to be willfully ignoring the evidence to argue that throwing people in jail for a long time is a way to deter crime. The reasons why the simple theory at the top of this post is wrong are that (1) most people committing crimes don't expect to get caught and (2) many people who are committing crimes don't even know what punishment might be, or vastly misunderstand the likely punishment.

Okay, so let's jump back into the copyright world. For reasons that are beyond comprehension, the UK government has announced plans to try to put copyright infringers in jail for 10 years. The UK's Intellectual Property Office recently released a report, following a consultation on this issue, in which it clearly supports a 10-year sentence for infringement, arguing:

The UK is frequently cited as the world leader in IP enforcement, and as Minister for IP I want to do everything I can to preserve this standing. The provision of a maximum ten year sentence is designed to send a clear message to criminals that exploiting the intellectual property of others online without their permission not acceptable.

The report also states, unequivocally:

The Government believes that online offences should be treated no less seriously than their physical counterparts. Harmonising these will provide a deterrent effect to criminals and, where criminality continues, provide for tangible punitive action.

Notice, of course, that there is no citation for this view. And, also, the fact that it clearly contradicts a ton of empirical research, as discussed above. Perhaps noticing the same thing, Kieren McCarthy at the Register sent a FOIA request to the Intellectual Property Office asking them where the 10 year maximum sentence idea came from. The answer? The IPO just made it up based on... nothing.

Such information was derived from our analysis of the evidence and opinion provided to us by a wide spectrum of interested parties, over the consultation period.

No empirical understanding of the issues of punishment and deterrence. No actual understanding of the issues. Just a bunch of people gave us their opinions, and we just plucked 10 years out of thin air. And, of course, as McCarthy notes, even that line above is clearly untruthful, since the vast, vast majority of the submissions provided to the IPO opposed the 10-year sentence proposal, which the IPO then stuck with anyway. In the IPO's response to McCarthy, it also cited a couple of studies concerning copyright, but both of those studies advise against such an increase in sentencing.

So it appears that the Intellectual Property Office is focused on increasing criminal penalties for copyright infringement to 10 years in jail based on proactively and willfully ignoring the empirical evidence both in the criminal justice world and in the copyright world.

And then they wonder why the public doesn't respect copyright law?

Filed Under: copyright, deterrence, evidence based, facts, faith based, ipo, jail terms, punishment, sentencing, uk

Silk Road Mastermind Ross Ulbricht Sentenced To Life In Prison

from the just-another-drug-dealer,-no-more,-no-less dept

Ross Ulbricht, the man behind the darkweb drug marketplace known as the Silk Road, has just been sentenced to more imprisonment than he has actual lives: two life sentences and "max sentences on all other charges." In addition, the government has chosen to hold him financially culpable for every single transaction that occurred at the Silk Road -- a fine of $184 million -- $166 million of which it has already recouped through the auction of seized Bitcoins.

Ulbricht had argued for leniency, arguing his online market "reduced harm" by moving the sale of drugs off the street. This argument was greeted with contempt by the presiding judge, who called Ulbricht's actions "thoughtful and calculated" and Ulbricht no different than a "dangerous dealer" pushing drugs in the Bronx. She also dismissed his argument as a "privileged fantasy," stating "There's no way Silk Road could reasonably be expected to reduce violence."

His last-ditch attempt to rely on the kindness of the court failed just as spectacularly as most of his legal arguments during the course of the prosecution. This is how it ends (pending appeal) for The Internet's Own Drug Dealer: a maximum sentencing coda, bringing closure to a cautionary tale of darkweb exploits, nearly non-existent operational security and a government that seemed to regularly color outside the lines of normal investigative techniques. While the story is certainly colorful and with a tech edge not normally associated with drug trafficking, Ulbricht's legal fate is ultimately no different than any "dangerous Bronx drug dealer."

Filed Under: life in prison, ross ulbricht, sentencing, silk road
Companies: silk road

Government Tells Jeffrey Sterling He's No General Petraeus; Defends 20-Year Sentence Recommendation

from the consistently-inconsistent dept

No sooner had General Petraeus received a mild scolding for handing over pages and pages of classified information to his biographer/mistress than the defense team handling Jeffrey Sterling's case saw a point of entry to argue that the proposed sentence of 19-24 years in prison was too severe.

Petraeus, who was also a CIA official, received two years probation and a $100,000 fine. The defense has asked for something more in line with recent prosecutions of whistleblowers and leakers: something between Petraeus and John Kiriakou (30 months), as it were.

The government has responded and it sees nothing wrong with punishing certain leakers one way and punishing Jeffrey Sterling another.

Federal prosecutors on Thursday defended their use of the Espionage Act to prosecute a former CIA officer who leaked information to a New York Times reporter and suggested it was “mistaken” for him to receive a sentence far below what federal guidelines call for because he gave materials to a journalist, rather than a foreign government.

The government argues that Sterling's leaks were far more severe than any of those cited in the defense's filing (Petraeus, Kiriakou, Stephen Jin-Woo Kim), seeing as they compromised "Russian assets" and caused the eventual shutdown of an (at that time) ongoing operation.

The filing also argues that Petraeus' disclosure of classified info to his biographer -- arguably a member of the public -- was not the disclosure of classified info to a member of the public.

Petraeus had given his biographer – who possessed a security clearance – access to classified information and improperly stored classified information at his residence. None of this classified information was included in his biography, made public in any other way, or disclosed by his biographer to any third parties.

It cites the government's prosecution of reporter James Rosen in support of its arguments -- itself a bad precedent. It also notes that no two cases are alike, although not in the way the defense team argued that same point.

Each national security case is unique. Each comes with its own intelligence equities and problems, which, unless one is intimately involved in the prosecution of the case, will never be understood completely.

Government knows best! It's well-established that each case is unique, although not in the way the government presents it. A lot of sentencing decisions are based on prosecutors' recommendations. If they don't really have an urge to punish someone, they'll offer plea bargains and lighter sentencing. If they want to turn someone into an example, they'll be as aggressive as possible -- stacking charges and rejecting lesser pleas.

This type of behavior is common to the entire spectrum of the justice system, from the county level all the way up to DOJ-prosecuted cases. So, it's redundant to say each case is unique. What the government needs to acknowledge is that it frequently acts inconsistently when prosecuting leakers and whistleblowers. But it won't.

Additionally, should one wish to obtain a wrist slap for espionage charges, the best bet is hope for a timely trial that might cause the government to weigh its vindictive urges against the potential disclosure of classified information.

As this Court noted in sentencing Mr. Kiriakou: . . . I recognize the difficulty the government has in prosecuting these types of cases. They have to balance the potential danger of disclosure of very sensitive information when deciding how to proceed, and in balancing those concerns, they came up with this plea. Kiriakou, Sentencing Transcript at 20-21 (January 25, 2003). Indeed, this Court indicated it would have sentenced Kiriakou within the Guidelines had the case not been a binding plea.

We can only speculate about the difficulties faced by the prosecutors and intelligence counterparts in these other cases. The prosecution in Petraeus, for example, undoubtedly considered the difficulty of proving intent and willfulness on the part of the defendant, elements of a § 793 offense, as well as the likelihood that very sensitive classified information would necessarily be disclosed at trial, when it decided to resolve the case through a plea agreement.

We can "only speculate" as well, but we know what it looks like from the cheap seats: favoritism towards those who play on the government's "team," and harshly treating those who point out the government's wrongdoing. Even Kiriakou's comparably-light sentence was far too harsh for the supposedly-criminal acts he performed, which were completely indistinguishable from other CIA officials' -- including CIA Director Leon Panetta's -- disclosure to the screenwriters behind Zero Dark Thirty.

All the government's filing does is further confirm that the justice system isn't really all that "just." The Petraeus prosecution pretty much shattered any remaining illusions about the fairness of the system. Some get wrist slaps. Some get the thrown book.

[Updated] And it appears Sterling will receive something in between the two extremes. The government was pushing for a sentence of 188-235 months, but it appears to have settled for something closer to Kiriakou's sentence: 42 months. The presiding judge even cited his case when sentencing Sterling:

“To put you at ease, the guidelines are too high,” [Judge Leonie] Brinkema said as the sentencing hearing got underway, glancing at Sterling and his lawyers, Ed MacMahon and Barry Pollack.

She went on to say that Sterling’s case was similar to Kiriakou’s, for which she had also been the presiding judge, because both involved the disclosure of the identity of an intelligence agent. She said Sterling should serve more time because Kiriakou had pleaded guilty whereas Sterling pleaded innocent and was found guilty by a jury. Brinkema added that “a clear message” had to be sent to people in the intelligence community that a price will be paid for revealing the identities of intelligence agents and assets, though she also said, in what appeared to be a reference to Petraeus not serving any prison time, that the judicial system had to be fair.

Filed Under: cia, classified info, david petraeus, doj, espionage act, jeffrey sterling, john kiriakou, journalism, sentencing, sentencing guidelines