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).

Saturday, March 24, 2007

Introduction and Background

On February 13, 2007, I was sentenced to 3 months confinement in a federal prison followed by 3 years supervised release with a special condition of 3 months home confinement with electronic monitoring.

In 6 days, I report to the Federal Prison Camp in Pensacola, FL. I must self-report by 2pm, however, the nice lady in the Receiving and Discharge department recommended I show up by noon or I risk not being able to purchase any necessary items from the commissary before the weekend (i.e. toothpaste, toothbrush, toilet paper, soap, shampoo, etc.). I am leaving Charlotte on a 9:40am (EST) flight, arriving in Pensacola at 10:27pm (CST). I will then take a cab to the prison 10 miles away. I will arrive with the clothes on my back, my wedding band (no stones), $1000 cash to place in my "account" for commisary and phone calls, reading glasses, and my driver's license (airline ID). It is my understanding I will be strip-searched and my clothes (and hopefully driver's license) returned to my wife by mail. By my calculations, I will be released on June 29, 2007. I have already purchased the return ticket so I hope I calculated correctly. I have 72 hours to get back to Charlotte and contact the probation department to begin my home confinement.

I have decided to share the thoughts of my prison experience because of the paucity of information available on the subject (nothwithstanding a handful of books and websites I have found). There are, I am sure, good reasons for this. For one, people who have been convicted of a crime are not usually interested in publishing details of a consequence that may be a source of shame or embarrassment. Fair enough. Additionally, the internet as we know it is only about 12 years old and blogging is an even newer phenomenon so the vast majority of current inmates lack experience with the entire concept of sharing their life in such a public manner. Finally, blogging requires a certain technical expertise and internet marketing savvy. None of these are constraints for me.

I am not normally comfortable with sharing my personal life in such a public manner. I sympathize with the fears of Winnie-the-Pooh:

"When you are a Bear of Very Little Brain, and you Think of Things, you find sometimes that a Thing which seemed very Thingish inside you is quite different when it gets out into the open and has other people looking at it. "

Nonetheless, there is value to me, and I hope to others, in documenting my experience.

I will not spend much time commenting on either the process or the substance of the government's prosecution of my case. The law is the law and the facts are the facts. Whether I agree or disagree at this point on this matter or that matter is really irrelevant. I entered a guilty plea, accepted responsibility, paid restitution, and received my sentence. It is what it is.

In addition, given that I am about to serve time in the custody of the Bureau of Prisons followed by 3 years under the supervision of the Federal Department of Probation, it is simply not prudent to be commenting on my case beyond what has been entered in the record, either in the form of documents submitted by my lawyers or statements made directly by me in court. Finally, the entire experience is still somewhat raw and it is common wisdom that one should avoid making comments on the record that one might later regret without adequate time for reflection.

Nonetheless, I know that the first question you are asking is, "What did this guy do to receive a federal prison sentence? How did he get to this point?"

The barest facts are as follows: On July 21, 2005, my home was raided by 7 FBI agents at 6am. All of my computers and other storage devices were seized, among other items. In June, 2006, I was indicted for 11 counts of "intentionally accessing and attempting to access a protected computer without authorization and obtaining information for purpose of commercial advantage and private gain." (18 U.S.C. §1030(a)(2)(C),(b) and(c)(2)(B)) Specifically, I copied a directory of physicians from a member association website using a handful of member logins I had acquired. Maximum possible sentence was 55 years and $2,250,000 fine (yikes!). On October 13, 2006, I entered a guilty plea for one count in the indictment, making me a federal felon. On February 13, 2007, I received my sentence.

Of course, that is the purely clinical recount... I can assure you the experience of each stage in the process was quite a bit more "fascinating." The past two years definitely rate as one of the most amazing experiences of my life. It was also easily the most expensive :)

For those who care about or understand the US Sentencing Guidelines with respect to computer crimes, the plea agreement I entered into included 6 points for the base offense, 6 points for damages of $30,000-$70,000, 2 points sentencing enhancement for "special skill," and 2 points sentencing reduction for "acceptance of responsibility." This 12 point total corresponds to a base guidelines sentence of 10-16 months (half of which can be home confinement). In addition, the government was allowed to argue for an additional 2 points enhancement for "sophisticated means" and an upward departure for criminal history category (that would essentially treat me as a repeat offender) based on the settlement of a prior civil lawsuit. If the government won both of these arguments, the guidelines call for a sentence of 15-21 months, all active time (i.e. no home confinement). If the government won only one of these arguments, the guidelines call for 12-18 months, also all active time (i.e. no home confinement).

The judge rejected the government's additional arguments and instead chose to sentence below the guideline recommendation. I received 6 months confinement (3 months active prison time, 3 months home confinement) with instructions to self-report on March 30 with a recommendation to the Bureau of Prisons that I be designated to a prison near Pensacola. On March 15, 2007, I was assigned to FPC Pensacola.

There are a variety of interesting legal issues related to my case, including both the substance of the charges (which represented an unprecedented expansion of the interpretation and application of the relevant statute to the facts of my case) and the process of the investigation and prosecution, especially with respect to the search and seizure of my computers. While I will not be commenting directly on these matters, I am happy to provide links to the relevant public documents (search warrant and search affidavit, 41(g) motion for the return of my computers, indictment, bail appeal, plea memo and plea hearing transcripts, sentencing memos and sentencing hearing transcripts).

In the upcoming days, I will document my preparations for prison and then afterwards, my life in prison and maybe even my life after that. I choose to view my upcoming incarceration as an opportunity rather than a bad break. While there is an element of apprehension, I am very excited to see how I respond to this challenge.... a life stripped down to its bare essentials. I fully expect the experience to be, as Martha Stewart remarked after her release, both "life altering and life affirming."

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