Prosecutorial Discretion, Charges & Sentences

In this post, I want to talk about the discretion a prosecutor has in deciding what – or, more precisely, how much – to charge someone with. I also want to talk about how that decision can impact on the sentence a convicted defendant receives.

To do that, I want to use a recent decision of the Second District of the Ohio Court of Appeals: State v. Cline, 2008 WL 1759091. You can read all of the facts in the opinion, which you can access via the link, above.

Basically, in 1999 and 2000 James Cline repeatedly harassed and stalked several women, relying on email for much of the harassment.

As a result of these activities, he was indicted (charged) on “eighty-six counts, including telecommunications harassment, conspiracy to commit aggravated arson, criminal mischief, intimidation of a crime witness/victim, menacing by stalking, and unauthorized use of a computer.” State v. Cline, supra. He went to trial and was convicted, but the Ohio Court of Appeals reversed his conviction because it found he had not adequately waived his constitutional right to counsel and ordered that he be given a new trial. (I’m not sure what was going on with that, but that’s not the issue we’re concerned with.)

After the Court of Appeals reversed Cline’s conviction, and before his new trial on these charges could start, “the State indicted Defendant on an additional two hundred and fifty-five counts of telecommunications harassment.” State v. Cline, supra. In other words, the prosecution got a new charging document – a new indictment – and in it they added an extra 250 counts.

The telecommunications harassment counts were based on his having used emails to harass at least some of his victims; each of the new counts was based on his sending an email to a victim. That’s an important, but often overlooked, issue in criminal law.

First of all, prosecutors have a great deal of discretion in deciding what charges they will bring. In some cases, the decision is pretty obvious: If A kills B, then the charge will be murder – one count because murder is killing a human being and one human being (B) was killed. The same basic principle holds for car theft (steal 1, that’s 1 count, etc.) and other more straightforward crimes.

It can become a lot more complicated when you get into cases like online harassment when the harassment involves emails. If hypothetical defendant X harasses victim Y by sending Y 1,000 harassing emails, is that 1 crime (single victim harassed = one crime) or 1,000 crimes (1,000 discrete acts of harassment = 1,000 crimes)? As I suspect you can already see, the answer to that question can have serious implications for sentencing, because while sentencing is not based merely on the number of counts the defendant was convicted of, that’s obviously a very significant factor in sentencing. So if, in my hypothetical, the prosecutor charges X with one count of harassment, he’s likely to fact a significantly lighter sentence than if he’s charged with 1,000 counts.

Cline tried to challenge the additional counts by claiming what’s called prosecutorial vindictiveness. Basically, prosecutors have a great deal of discretion in charging, but they can’t use that discretion improperly, simply to “punish” someone for exercising their rights, say. Cline argued that he was being “punished” for winning on his appeal. The Court of Appeals rejected his argument, basically because it bought the prosecution’s claim that the additional counts were added because, in preparing for the second trial, they discovered that they’d made an error by NOT breaking the counts up the first time.

(All of that gets us into the legal intricacies surrounding charging, which I’m not going to get into here. Basically, it’s improper for a prosecutor to take one crime and break it into parts; it’s also improper for a prosecutor to charge two crimes in a single count. The prosecution in the Cline case said they added the counts because they decided they’d made the latter error the first time.)

Cline went to trial and “was found guilty of four counts of unauthorized use of a computer, two counts of conspiracy to commit aggravated arson, one count of menacing by stalking, one count of criminal mischief, one count of intimidation of a crime witness/victim, and one hundred seventy-six counts of telecommunications harassment.” State v. Cline, supra. The trial court imposed the maximum sentence on most of the counts, and imposed sentences that ran consecutively on 48 of the counts (which means he had to serve the time imposed for each one in sequence, which elongates the ultimate time served). The total sentence imposed on him was imprisonment for “fifty-eight and one-half years”, a pretty stiff sentence.

Cline argued that the sentence was excessive, noting that since he was 39 when he was sentenced, the 58+ year sentence is effectively a life sentence. He also pointed out that “of the one hundred and eighty-five counts he was found guilty of committing, one hundred and eighty of those, including all of the telecommunications harassment charges and the four unauthorized use of a computer charges, are low level felonies of the fifth degree.” State v. Cline, supra. This means that, individually, the sentence for each count would be quite low; but when you have those sentences run consecutively, and you’re talking about almost 200 counts, you can get a substantial sentence.

The Court of Appeals found that the sentence was not excessive, given (i) Cline’s lack of remorse, (ii) his having engaged in “strikingly similar” conduct in the past and (iii) the sheer magnitude of the harassing emails he sent and phone calls he made. State v. Cline, supra. It does seem to have been a truly egregious case. If you want to find out how egregious, take a look at the opinion using the link above.

I’m going to do another post on sentencing in cybercrime cases, generally, but I want to throw out a couple of thoughts before I end this post. What do you think of the sentence in the Cline case? Is 58+ years too much or just right for someone who used hundreds of emails (maybe thousands) to harass women who had broken up with him?

What issues should we consider when we’re sentencing computer criminals? Does it matter that computer criminals are (usually, Cline seems to have made some threats about arson) nonviolent? How do we weigh the “harm” inflicted on a victim – is emotional distress a “harm” significant enough to major jail time?