Everything you know about federal sentencing is a lie
A reply to Andrew Rettek, a friend in the rationalist online community, in a thread sparked by a viral Tumblr post about federal bank-fraud sentencing. The Tumblr post had used the case of a former DC City Council chairman convicted of bank fraud — whose statutory maximum penalty was extremely high — as evidence that ordinary American bank customers face draconian federal exposure. Rettek had argued that even if the post was inaccurate, it was raising a real problem about misinformation in criminal law. Alyssa pushes back: trying to fight legal misinformation with Tumblr is, in her words, like fighting California forest fires with gasoline.
The trouble is that misinformation about the law is not the same problem as the law itself, and trying to fight misinformation with Tumblr is like trying to fight California’s massive forest fires with gasoline. Tumblr’s structure makes it extremely vulnerable to the dynamics CGP Grey describes in This Video Will Make You Angry , or Scott Alexander describes in The Toxoplasma of Rage — inaccurate information will tend to outcompete accurate information. Even if you say something completely true, if it becomes popular, you’re likely to come back a few months later and find that it’s been twisted into unrecognizability. My favorite example is the Reinhart and Rogoff paper, because I read the original in undergrad, and then got to watch the mutation in action in real time. Reinhart and Rogoff originally found that there was a “threshold effect” for national debt — i.e., there was a certain level (90% of GDP) over which debt became really really bad for economic growth. In 2013, someone found they had made a spreadsheet error, and that there was no “threshold effect”; debt just became more bad in a smooth way as the amount went up. On the Internet, this quickly mutated into “this paper that shows debt is bad was based on a spreadsheet error”, which mutated into “all papers that show debt is bad were based on a spreadsheet error”, which mutated into “all papers that show any negative effects whatever from increasing government spending were based on a spreadsheet error”, until last year my coworker Crutcher Dunnavant told me in complete seriousness, over lunch in the Google cafeteria, that all right-wing economic policies ever were based on a spreadsheet error. Which is especially amusing, because that paper didn’t even come out until 2010, so blaming right-wing reactions to the financial crisis on it would required someone to have invented a time machine.
Even if you did fix the apparent issue in this particular case — the high statutory maximum sentence for bank fraud — there’d be nothing stopping a federal prosecutor from saying, completely truthfully, something like “You’re being charged with a federal crime under Title 18. The maximum penalty that can be imposed under Title 18 is life in prison.” Title 18 is just the abbreviation for the federal criminal code — it literally contains all federal crimes ( Popehat: “What Law? Just… You Know, The Law” ). But almost nobody knows that, because they aren’t lawyers in federal practice. I wouldn’t know that, if I didn’t spend too much time reading Popehat.
And it isn’t really the main point, but because of the whole misinformation thing, I feel I should also say that: The guy in question served only a single day in prison, plus probation and community service.
The guy in question was also the chairman of the DC City Council, and his position as an elected official was explicitly used against him in court, which is exactly the way it ought to work (people in power should be held to higher standards).
The guy in question didn’t just lie; he stole his friend’s signature without their permission to create a fake “company” that he pretended to be employed by.
He then used White-Out on a Form 1099 to change his income from “$35,000” to “$85,000”, so that he could get another loan for a forty-foot boat.
As a practical matter, the only reason this guy was prosecuted is because he was a high-profile politician, and prosecutions for the overwhelming majority of on-paper federal crimes are you’re-way-more-likely-to-get-hit-by-lightning-level rare (the main exceptions are immigration fraud, large-scale drug trafficking and illegal arms dealing, but while those prosecutions are often unjust, they shouldn’t come as a surprise to anyone).
As GiveWell and others have argued (I remember reading a beautiful thirty-page paper on this that I sadly can’t find), the criminal court system is definitely on the (very long) list of US institutions that need major reform, but you can’t reform things in the absence of accurate information about what they’re currently like. It’s like trying to go to war when all your soldiers are wearing blindfolds — they’re as likely to shoot each other as the enemy.