Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution" that controls their daily existence in a way that few of us can imagine. "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, walking, speaking, silent, working, playing, viewing, eating, voiding, reading, alone, with others. . . ." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. -- Justice William Brennan, dissenting in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987).

Tuesday, August 14, 2007

Wife who killed preacher could go free today

http://www.cnn.com/2007/US/law/08/14/preacher.slain/index.html

In March 2006, Mary Winkler shot her preacher husband in the back with a shotgun. She was tried and convicted of voluntary manslaughter.

In June, while I was in prison, she was sentenced to 3 years in prison. I was amazed. I recall telling my parents when they visited that it was a good thing she killed her husband; had she sold him crack instead, she would be facing serious federal time.

Here I was surrounded by men whose only crime was selling drugs (or, in many cases, simply involved in some way in the "conspiracy" to sell drugs -- one guy was doing 12 years because, as a favor to his cousins for no compensation, he translated from Spanish to English to facilitate a drug deal!) who were doing far more time for a non-violent offense while Ms. Winkler gets 3 years for shooting her husband in the back.

But wait, it gets better. The judge only required her to serve 210 days of the sentence in prison, with the remainder to be served on probation. Since she had already spent 5 months in jail awaiting trial, she is now being released after serving the final 60 days. In other words, I am doing 6 months (180 days) -- half in prison, half home confinement -- for making a copy of a physician list; she gets 30 days more for shooting her husband in the back. I understand there were difficult circumstances involved but the fact remains she killed another human being voluntarily and she will only spend 7 months in jail.

Part of the difference is state vs federal sentencing (hers was a state case) but surely that cannot possibly fully explain the twisted sentencing priorities in our system(s) of justice.

14 comments:

Anonymous said...

Bill, please explain, why your case is a federal case? It's an internet fraud case so would it not be under the NC DA or ASA? Another point you make is that state sentencing guidelines are completely different then federal, for your case if it were a state case do you assume you would have gone to JAIL? and I know that their good time is huge compared to 12.8% Any feedack for readers would be great. Keep up the great work, I wish for more traffic to your site and it brings some change somehow....if anything the world can see what happens in the inside.

Bill Bailey said...

My case is a federal case because the victim was in Philadelphia and I am in North Carolina, although that I guess ultimately doesn't matter because the statute I violated says that it is a felony to gain "unauthorized access to a protected computer to obtain information for profit." USC 1030(a)(2)(C).

USC 1030(e)(2)(B) defines a protected computer as, among other things, a computer "which is used in interstate or foreign commerce or communication." Any website falls under this definition although it is doubtful that the authors of the statute, since this language predates the internet as we now know it, intended it to apply to websites. It is pretty clear from the DOJ's own analysis of the statute that Congress had in mind the protection of private information on private networks.

See http://www.cybercrime.gov/1030analysis.html which notes that, in 1986, according to the Judiciary Committee:

"t]he premise of 18 U.S.C. 1030(a)(2) will remain the protection, for privacy reasons, of computerized credit records and computerized information relating to customers' relationships with financial institutions. . . . Because the premise of this subsection is privacy protection, the Committee wishes to make clear that 'obtaining information' in this context includes mere observation of the data."

However, as amended, according to DOJ,

"Importantly, 18 U.S.C. § 1030(a)(2), as amended, does not punish the mere acquisition of information (which might unduly impede the free flow of ideas), but prohibits intentionally accessing a computer without or in excess of authority and then obtaining such information. Moreover, to the extent that the information obtained is or should be available, it should be obtained through legal means (e.g., public sources or FOIA) and not through hacking." (emphasis added)

Unfortunately for me, while the acquisition of public, uncopyrightable facts was legal, the means by which I did it was illegal. Had I gone to the public library and obtained a copy of their printed directory (which they used to publish) and copy the data, it would have been legal. Since I did it instead by means of using a member login to access their website directory, it was illegal.

Is that a technicality? I'll leave that for you to decide but no prosecutor until my case had deemed these facts worthy of a federal prosecution.

The victim called the FBI when they noticed my intrusion into their website directory... that is how the feds got involved. I am not sure how this would have gone as a state case. I would not have caught me without significant assistance from the FBI.

Anonymous said...

I understand that drugs are a serious problem, but the sentences - as you described - really seem to be out or proportions when compared to more serious crimes.

Your case is interesting: I didn't realize until now that the data you acquired wasn't actually classified.

Bill Bailey said...

Many medical associations publish their member directories online. Sometimes these directories are made available to the general public (e.g. the AMA directory can be found at http://webapps.ama-assn.org/doctorfinder/home.html); sometimes they are password-protected and only available to the members. In either case, the directory contains information that is public... that is, it can be obtained, although with more difficulty, from a variety of public sources.

It is well established law that such information cannot be copyrighted (i.e. the medical associations cannot claim a property right over a doctor's address, phone, fax, or email).

I assumed that because the information was "public," that I was legally entitled to collect it, regardless of whether it was password protected or not. In my mind, the fact that the medical association did not want me to do this was irrelevant... it is not their property. If they choose to publish it on the internet, password-protected or not, they do so at their own risk.

As a matter of law, as much as I hate the law on this matter, it turns out I was wrong... how I collected the data is important. It would be like me walking into your house and copying your phone book. Copying the phone book would not be against the law... trespassing in your house would be. In effect, I was prosecuted for computer trespass.

The irony is that the computer trespass is not what pissed off the government or the medical association; it was, of course, the copying of the directory. However, copying the directory was not illegal so they were stuck with prosecuting me on the technicality of computer trespass. They tried to argue at sentencing that this was information theft but the judge apparently did not buy it.

jack said...

THE DRUG DEALER SHOULD HAVE GOT LIFE PLUS 120 YEARS, IF YOU CANNOT DO THE TIME DON'T DO THE CRIME.

jack said...

You have a very interesting post, but I feel that you did not learn a dam thing from your time, except to bitch about it.

I guess the old saying is true.

No body in prison is guilty

Bill Bailey said...

Gee... I hope nothing I write about sounds like "bitching."

Prison was one of the most interesting experiences of my life and I will always refer back to it. While I think it is a little silly that I spent time in federal prison for what I did, I was happy to only get 3 months and to use it as a unique cross-cultural experience. It turned out to be an eye-opening experience in so many ways I did not anticipate.

I didn't need to go to prison to "learn a damn thing." I didn't know what I was doing was illegal... I didn't need to be sent to prison to learn that it was, but if the government wants to waste your money to put me there, what can I do except enjoy the ride? (Bobby Knight famously, and controversially, noted that "if you are going to be raped and there is nothing you can do about it you might as well sit back and enjoy it." While I would not have said it, I kind of understand what he meant now.)

Perhaps it is my observations about the "system," and the ways in which is unjust, that you consider "bitching," but I am convinced that if the average person on the street saw what I saw and experienced what I experienced, the criminal justice system would have to change. My bitching has little to do with what happened to me but a lot to do with what I saw happen to other guys.

Your comment about not doing the crime if you can't do the time is just ignorant, although I will cut you some slack and just call it naive. You point seems to be that anyone who has broken the law deserves whatever punishment the justice system decides to impose, as if there is no such thing as an unjust sentence. Surely you don't agree with that?

Anonymous said...

Jack you are a moron. You are definately a flag waving ignorant looser. People like you (just so you know I am not a federal felon) are the reason why the system is broke. I am a concerned tax payer and I just don't get it with all the debt and waste here you are preaching "learn something, stop bitching" Instead of keeping sentences in perspective people like you voted to have manadatory minimum's and congress was fast to act. Keep waving the flag and let the economy crumble, your kids and their kids will end up paying for your ignorance in extreme taxes...Keep watching all the jobs go abroad while you work in a service industry taking orders from China and India. Think for a second, Bill is not a violent offender, merely a white collar guy trapped in a criminal prosecution, this should have been a civil case hit him in the pocket make him do some community service and move on...

Kathy said...

Jack is certainly an ignorant fool! Thanks Anonymous for setting him straight. Bill - you are not bitching at all...I appreciate you sharing your comments. My husband too was put in prison for doing something that he didn't know was against the law. I certainly don't appreciate the Government wasting OUR tax dollars putting guys away for these conspiracy crimes -- what are they trying to prove??? I guess the Assistant US Attorneys need to justify their jobs!

disillusioned said...

I was just finished ranting the other day about how this injustice happened. It boggles my mind to see some of these Federal sentences handed out compared to state sentences. Furthermore, Feds don't even play fair. A good example to see how Federal prosecutors work is to see Michael Vick's case. Instead of just allowing him to fight his dogfighting and interstate charges which he will probably be looking at around 24 months if he went to trial and lost, they threaten RICO on him which could send him to prison for 10 years. Now I'm not a lawyer and I don't know what it takes to get indicted on RICO, but come on.....10 years???? I don't know if Vick is guilty or not, but they're sure not giving him a chance to fight it are they? Anyone, innocent or guilty when faced with 10 years in prison will take a 1 year plea. Even those people who say "I will never plead guilty if I'm innocent", they have never faced this situation. Don't think for a second that if you don't do anything wrong than you won't get in trouble. They don't let you fight it and its ridiculous. Let Michael Vick fight it on its original charges; how in the world does he deserve 10 years if the AUSA is willing to give him a plea for a 12 month sentence? People who have never experienced a Federal investigation will never understand the "win at all costs" and "the end justifies the means" mentality that is so prevalent in the Federal system. They are worse than a lot of the criminals themselves.

Bill Bailey said...

It's funny how this post has received so many comments.

I have been following the Vick situation and I understand what you are saying. I am in the process of finishing up a couple articles on the plea bargaining process as well as the use of codefendants as informants. For a sneak preview, you may find the following article, though 8 years old, interesting:

Twisted Justice: Prosecution Function in America Out of Control

As you suggest, it isn't so much that innocent people are being convicted necessarily, it's that a defendant never has a fair chance to make his case because the government over-indicts (e.g. by adding a ridiculous RICO count to the indictment), making the risk much too great.

The defendant is playing poker against someone who is betting house money and knows your cards. Tough game to win.

As I will discuss in my upcoming article, the "penalty" for exercising one's constitutional right to a jury trial is running about 4-5 times what you would get by taking the plea. I get letters from people who swear they are innocent but take the 1-3 year plea offer because they can't risk 10+ years in prison if they lose at trial.

I understand that a person who "accepts responsibility" and "cooperates" should be cut a little slack at sentencing, but the difference should not be 4-5 times. In fact, the sentencing credit for accepting responsibility and cooperating is technically rather small; however, the big reduction comes in that the government agrees to drop, or reduce, many of the original charges or agrees not to argue for certain enhancements.

The reality in today's federal system is that prosecutors, not judges, determine sentences. The judge's function in many cases is almost a formality by the time they get the case.

In Vick's case, I think it is clear that he had some association with dog fighting, however, much of the particularly damaging allegations concerning the cruelty to animals are based solely on 4 "informants" who took plea deals before the indictments and now the other 3 codefendants in the indictment have taken plea deals to testify against Vick.

Unfortunately for Vick, he would have to risk going to trial knowing that 7 "friends" will be testifying against him and you can sure bet that their stories will be exactly what the government wants them to be. I am not saying that they are going to lie but I am saying that I think they would say whatever they were told to say in order to get their sentence cut.

The other problem Vick has is not knowing how the NFL will react (and Goodell is not tipping his hand). If Vick takes a plea deal for 1 year, the NFL may ban him for life for being a federal felon... which, for Vick, is actually a bigger penalty. If he knew for sure that the NFL would ban him for pleading guilty, he would be more inclined to take his chances at trial in the hopes of being acquitted and then reinstated in the NFL.

Until you've been there, you have no idea how much pressure he is under right now.

My recommendation is that he take the deal and hope the NFL cuts him some slack when he gets out.

Bill Bailey said...

By the way, as a disclaimer I should probably add that my prosecutor -- just in case he is reading this! -- was not that bad... my thoughts on the subject are based more on the stories I heard in prison and research I have done.

I was not overindicted. There were other charges that would have been a stretch that he could have thrown in but he didn't do it and never suggested that he would do it if I didn't take the plea.

However, he did attempt to over-enhance (rather than over-indict) by arguing that my sentence should be increased based on certain factors concerning the base offense. These enhancement arguments, while I suppose not totally frivolous, were unprecedented and fortunately I won them at my sentencing hearing but they did force me to spend a whole lot more money than necessary had he made a more reasonable plea offer from the outset.

Anonymous said...

VICK is in a jam now, All I can say is the feds love to make an example and over punish. I just hope he has enough money left over after all of this because I believe all this publicity has ruined any chances he had in the NFL or in everyday life/business. The lawyers will cash in like usual and NOT gurantee anything in return...

Look at that NBA ref, he was making $ 265k a year salary and he made some poor decisions, now he will never see that kind of pay again....ever. He will serve 6-12 months only in a camp probably pensacola since he lives in Sarasota, Florida.

The AUSA's don't keep anything in perspective all they care for is to over indict and charge as many counts possible. They are NOT humans, they are machines in a law factory. They will drag it on so the defense attorneys get the client broke then let you plead to one count. You are guilty only when you are BROKE....

Marcus said...

FBI & AUSA due to performance goals set by the "govt" go after anyone, read this article on how they ruined hollywood actors life. Also they have 5 years to investigate before the statue ends, but then again they make the darn statue so what difference does it make...its more like the ...
http://www.msnbc.msn.com/id/20327578/