Orin Kerr is a professor at The George Washington University Law School. He’s an expert on criminal procedure and computer crime law. Today in the Washington Post, he has a 3,100-word piece that breaks down the Barrett Brown sentencing like a fraction. Honestly, if you’re not a lawyer who works in this field, you probably don’t want to read it. Kerr himself makes a joke toward the end of his story about how only three people will read the entire thing. So here’s a taste if you don’t have the time and inclination to tackle the entire plate:
A lot of the press coverage of the Brown case has been based on the possibility that Brown was punished for sharing a link — specifically, he may have received a two-level enhancement for trafficking as a result of it. There has been a lot of outrage over the idea that a person can punished for just sharing a link. Brown was originally charged with trafficking for copying and pasting the link, although the charges were later dropped. A lot of people have interpreted the judge’s two-level enhancement for trafficking as essentially resurrecting the trafficking charge, again raising concerns that the government overreached by treating cutting and pasting a link as illegal “trafficking.”
If I understand the Guidelines correctly, however, it’s completely irrelevant whether Brown’s own conduct amounted to trafficking. The legally relevant issue is whether the underlying hack that Brown helped included trafficking that Brown knew or should have known about. If the judge added these enhancements based on Brown’s own acts, I think that was an error. The key issue isn’t what Brown did, but what Brown knew or should have known about what others did.
I understand why the sentencing process must be codified. Part of what I tried to convey, though, when I wrote about Barrett’s day in court was this: when a code becomes so convoluted and arcane that the citizenry can’t follow it — so complex that even lawyers and judges have a hard time parsing it — then it ceases to be useful. Rather than the law being applied uniformly across the country, it can be perverted from court to court. And, in any case, the federal guidelines are only that — guidelines. When a judge goes through a case like he did with Barrett’s, making 15 decisions about this level and that, one enhancement and the next, the process might look objective. “Oh, he’s just going by rules.” But it isn’t. And in the end, no matter the product of the code, however many months the guidelines suggest, the judge can deliver a sentence of his own choosing. The entire process starts to look like a farce.
And it would be, if Barrett Brown weren’t sitting the Kaufman County jail.
