Volokh Conspiracy: The controversial punishment of Barrett Brown: A deep dive

Ive read a lot of criticism recently about the sentencing of Barrett Brown. The online commentary mostly portrays Browns sentence as a disturbing example of prosecutorial abuse, in which the Obama Administrations war on journalists and war on hackers came together to shred First Amendment freedoms. I wondered, is that true? What really happened in the case, and was Browns sentence troublesome or not?

I spent some time looking into this over the last few days. Trying to break down the sentencing issues in the Brown case is actually pretty hard, as a lot of the key documents have not yet been released. The guilty plea and sentencing memos are under seal, and the transcript of the sentencing hearing has not yet been made public. [UPDATE: The plea is not under seal; it's here, via Free Barrett Brown.] So any conclusion right now has to be tentative, as we dont yet know all the facts.

With that said, here are three tentative conclusions. First, the sentencing judge may have made some mistakes in calculating Browns sentence. Second, if the judge did make those mistakes, they may have led the judge to sentence Brown to an improperly long sentence but then, oddly, they may alternatively have led the judge to sentence Brown to an improperly light sentence. Third, if there were errors, they were pretty technical errors. They were errors in interpreting an esoteric provision of the Federal Sentencing Guidelines, not anything relating to a war on hackers or a war on journalists.

In that sense, the Barrett Brown case is pretty different from the case of Andrew Auernheimer, aka weev (and my former client). From indictment to appeal, the weev prosecution involved a long list of plainly troubling prosecution theories that had broad implications for civil liberties online. The Brown case raised some interesting legal issues at the beginning. Ill touch on some of them here, but others Ill have to leave out just to keep this post from turning into a book. But at this late stage, at sentencing, the legal issues in the Brown case arent as grand as a lot of people seem to think.

With that enticing introduction, lets dive in.

Ill begin with some context. Barrett Brown pled guilty to three crimes. First, he helped some hackers evade detection by acting as an intermediary for them. That made him an accessory after the fact in violation of 18 U.S.C. 3, which punishes one who, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment[.] Second, when a search warrant was executed at his moms house as part of the hacking investigation, he tried to hide his computer from the agents in violation of 18 U.S.C. 1501. (His mom helped, too; she was charged and received probation.) Third, after the search, he posted a Youtube video threatening the agent investigating him.

Despite the controversy surrounding the Brown case, it seems to be common ground that Brown did in fact commit these three crimes. He admitted as much at the sentencing hearing, and there werent any stretches of the law involved in the three counts to which Brown pled guilty. [UPDATE: More stipulated facts are here.] There are harsh criticisms of a different count from an earlier indictment that was later dismissed, which Ill get to later. And there are a lot of objections that Brown wasnt really the biggest criminal in the world. He helped the hackers, many have pointed out, but he isnt a hacker himself. But at least as a legal matter, the factual basis of the three guilty pleas seems pretty uncontroversial.

In this post, Ill focus mostly on the controversy over the sentence Brown received following his guilty plea. By way of background, federal judges calculate sentences in federal criminal cases using a complicated framework set out in the Federal Sentencing Guidelines. The Guidelines work by calculating an offense level for every crime that tries to gauge the seriousness of the offense. It starts with a base offense level that applies to all such crimes, then considers specific offense characteristics that add or subtract points baed on the specific circumstances of that case. Judges then take the resulting offense level, calculate the defendants criminal history, and then go to this chart to figure out what the sentencing range should be. The resulting range isnt legally binding on the judge, but its the usual ballpark range for the sentence.

In the sentencing in Browns case, the defense attorneys started off with a significant victory. Although Brown pled guilty to three crimes, his defense attorneys persuaded the judge to punish him as if he had only pled guilty to one of the three crimes. The Federal Sentencing Guidelines have some pretty arcane and complicated rules for how to calculate sentences when a person commits several offenses, and in this case the judge decided to calculate the sentence based on the most serious offense, helping the hackers as an accessory after the fact. The other offenses played a minor role that well get to later on, but the bulk of the sentencing was based on being an accessory after the fact to the hackers.

To calculate Browns sentence, the judge started with the guideline for being an accessory after the fact, Section 2X3.1. You can read that here. At first it seems pretty simple. You calculate the offense level for an accessory after the fact, it explains, by starting 6 levels lower than the offense level for the underlying offense. In other words, this guideline is derivative. To figure out how serious it is to be an accessory after the fact for a hacking offense, you have to first figure out how serious the underlying hack was and then deduct six levels.

Continued here:
Volokh Conspiracy: The controversial punishment of Barrett Brown: A deep dive