Archive for December, 2008

OJ Simpson Sentence Confuses Press

Friday, December 5th, 2008


OJ Simpson was sentenced today in Clark County District Court, after previously being found guilty of multiple crimes arising out of an armed break-in and theft at a Las Vegas hotel. The details can be found in any news outlet you fancy. But what sentence did he get? The headlines are all over the place.

Some sources say he got 12 years. Many say 15 years. Some say 33 years. Some say 9 years. What gives?

The reason for the confusion is the fact that OJ was sentenced on 10 counts, with many of the sentences running concurrent, and some running consecutive.

Concurrent sentences are served at the same time. So if you get sentenced on two counts, one for 5 years and the other for 6 years, to run concurrent, then you only face 6 years. But if they were to run consecutively, then you’d be serving 11 years.

So how does OJ’s sentence break down?

First, the concurrent sentences:

Count 1: Conspiracy to Commit a Crime: 1 year
Count 2: Conspiracy to Commit Kidnapping: 1 to 4 years (eligible for parole after 1 year, max of 4)
Count 3: Conspiracy to Commit Robbery: 1 to 4 years
Count 4: Burglary While in Possession of a Deadly Weapon: 2yrs 2 mos to 10 years
Count 5: First Degree Kidnapping with Use of a Deadly Weapon: 5 to 15 years
Count 6: First Degree Kidnapping with Use of a Deadly Weapon: 5 to 15 years
Count 7: Robbery with Use of a Deadly Weapon: 5 to 15 years
Count 8: Robbery with Use of a Deadly Weapon: 5 to 15 years

So the concurrent sentences have a max of 15 years, with eligibility for parole after 5 years.

Next, the consecutive sentences:

Counts 5 to 8 add 1 to 6 years to run concurrently with each other, but consecutive to the rest
Count 9: 1.5 to 6 years consecutive to Count 8
Count 10: 1.5 to 6 years consecutive to Count 9

So add 1 + 1.5 + 1.5 = 4 years to the parole eligibility, for a total of 9
Then add 6 + 6 + 6 = 18 years to the max number, for a total of 33

So OJ is eligible for parole in 9 years, and could conceivably serve a maximum of 33 years.

Hope that clears things up.

Stop the Presses! Threat of Punishment Might Work!

Thursday, December 4th, 2008


The respected journal Science will publish tomorrow a research study that suggests that the threat of punishment can keep people from getting in trouble. Stop the presses!

You’d think that this might have been studied before. But previous studies (focusing on freeloading vs. pro-social behavior) only focused on short-term outcomes. This new study, on the other hand, found in the long term the threat of punishment becomes deeply embedded in people’s subconscious, so that they come to fear getting in trouble.

You’d think this might have been too obvious to require study. But as Karl Sigmund of the University of Vienna explained to, “the experimental work is extremely important and timely, as many researchers had voices concern whether punishment is not too costly a tool to promote cooperation.”

Clearly punishment isn’t the only tool out there to affect people’s behavior. Socialization, community involvement, and positive inducements are all strong factors. But we’re going to go out on a limb and say that, until something else comes along that satisfies society’s need for deterrence, removal (and, sadly, retribution), punishment’s going to remain part of our toolbox for a long long time.

[The research was performed by a team led by Simon Gächter at the University of Nottingham.]

Upping the Ante in Darfur: ICC Prosecutor Warns of Reprisals

Wednesday, December 3rd, 2008


A couple of weeks ago, we reported that Omar al-Bashir had announced a unilateral ceasefire in an attempt to avoid being formally charged by the International Criminal Court. ICC chief prosecutor Luis Moreno-Ocampo had asked that al-Bashir be charged personally with multiple counts of genocide, crimes against humanity, and war crimes. We saw the ceasefire as an attempt to appease Britain and France in the hope that they would approve an Article 16 deferral of his prosecution.

We also pointed out that, if all else fails, al-Bashir could also just terminate the humanitarian aid to Darfur, kick out the U.N. / African Union peacekeepers, and blame the resulting death and suffering on the West.

But today, ICC prosecutor Moreno-Ocampo warned the Security Council that al-Bashir is already preparing to go the violent route. Moreno-Ocampo stated that al-Bashir has made direct threats of reprisals against peacekeepers and civilians. He added that “such threats should be seen for what they are: a confirmation of criminal intentions.”

We had also suggested that al-Bashir might think of throwing his (Orwellian-titled) Minister of Humanitarian Affairs to the wolves. But Moreno-Ocampo stated that al-Bashir is instead protecting that minister from the dozens of war crimes charges pending against him. “The impunity afforded to [the minister] is a direct message to all perpetrators of crimes in Darfur,” he said. “That message is, ‘the president will protect those who are following his orders.’”

Because al-Bashir appears to be readying more violence, Moreno-Ocampo warned the Security Council to be prepared to take action in carrying out any arrest warrant.

The Security Council, however, now appears less and less likely to do so. Although the Council had unanimously referred the matter to the ICC in the first place, now that push is coming to shove certain Council members are backing off. China, Russia and Libya, as we pointed out, have close ties to al-Bashir’s regime, and are unlikely to support a confrontation. The African Union and the Arab League have now also asked the Council to defer the investigation of al-Bashir, on the curious grounds that it’s not helpful to the peace process.

There are some small voices pushing for Security Council action, however. Costa Rica’s U.N. Ambassador, Jorge Urbina, stated that although there is disagreement among the Council members as to whether to approve an Article 16 deferral, “we regret very much the pressure that has been put on the Council to defer the case from the court. We believe that this pressure should [instead] be put on the government of Sudan to comply with the decision of the court.” Human rights groups are also pushing for a unanimous message from the Council that the Sudan regime must comply with the ICC and that it will not permit retaliatory violence.

By all appearances, then, it looks as though al-Bashir is going to get the deferral he sought. The combination of his ceasefire, his allies on the Council, and the fear of reprisal might just be enough to do the trick. The world now looks to the ICC to see whether it will actually issue the arrest warrant that will force everyone’s hand.

MySpace Conviction Probably Exceeded Scope of Law

Tuesday, December 2nd, 2008


We were away last week, achieving an unqualified victory in a case brought by the Antitrust Division. But while we were gone, Lori Drew got convicted of three criminal counts of accessing a computer without authorization. Drew is the mom who was accused of harassing a teenaged girl over the Internet to the point where the girl committed suicide.

The underlying statute, the Computer Fraud and Abuse Act, is a federal law intended to prevent hacking. Drew created a fictitious MySpace account, which was used to harass the girl. In doing so, Drew violated MySpace’s terms of service, though she apparently never read them. By violating the terms of service, Drew got unauthorized access to MySpace’s servers, and the prosecution went out on a limb to argue that this technically violated the CFAA.

But does it really?

Plenty of pundits are now doubting that the verdict will survive an appeal. Congress clearly intended the law to criminalize hacking into someone else’s computer. That’s different from creating a fictitious screen name — a very common and socially acceptable occurrence.

Terms of service are conditions imposed by websites which govern permissible use, and which almost always prescribe penalties that may be imposed for violations. These penalties normally range from warnings and temporary disabling of access, to permanent denial of access. The relationship is essentially contractual.

But if the prosecution’s theory is upheld on appeal, then breaching such conditions would have criminal consequences.

Criminalizing this kind of behavior isn’t exactly far-fetched. Crime is essentially that behavior which society considers so threatening that the guilty must be punished with a restriction on liberty or a loss of property. The existence of a civil remedy does not preclude something from being criminal — a thief is civilly liable to return what he stole, but still faces jail regardless. And there may be something to an argument for criminalizing the false personas on social networking sites frequented by minors, to protect society from predators.

But that’s clearly not what Congress was trying to do here. Furthermore, the prosecution’s stretched interpretation is just too overbroad. Rather than being narrowly tailored to focus on those who violate the TOS of a child-used site for the purpose of committing a nefarious or dangerous crime, the prosecution’s theory simply criminalizes all violations of any site’s TOS agreement. A court of appeals is likely to find that an improper application of the law.