Determining factors

Determining factors

The determination of the punishment in a specific case depends on the type of crime, the type of harm, the existence of enhancement provisions, the existence of multiplier provisions and the existence of civil remedies.

As a rule, each type of crime has a range of punishments. In California, for example, access to defraud can be treated as a felony, involving punishment of up to three years and a fine of up to $10,000, or as a misdemeanor punishable by a fine of up to $5,000 and up to one year in jail.FN40

A number of statutes have graduated punishments based on the degree of harm to the victim of the crime. Iowa provides for five degrees of computer damage and five degrees of computer theft. The punishments are correlated with that state's classification of misdemeanors and felonies. For example, computer damage in the first degree is classified as a class C felony. Computer damage in the fifth degree, involving the least damage, is classified as a simple misdemeanor.FN41

Enhancement provisions increase the penalty of a computer crime where certain preconditions are satisfied. Missouri and Nevada,FN42 increase the penalty for a computer crime when the victim is one of a specified category of victims.FN43 Missouri's law enhances punishment if there is "an interruption or impairment of a governmental operation or of public communication, transportation, or supply of water, gas, electricity or other essential public services."FN44 If one of these conditions is proven, the penalty is changed from a class A misdemeanor to a class C felony. The practical result of that change is a difference in the sentence range from one year in county jail for a misdemeanor to several years for a class C felony.

Since the first computer crime bill was proposed in the U. S. Senate, the idea of deterring large thefts by even larger fines has been one goal of computer crime laws. Montana's statutes provide that one convicted of unlawful use of a computer "shall be fined not more than 2-½ times the value of the property used, altered, destroyed or obtained".FN45 Connecticut provides that if someone is convicted of computer crime involving a gain of money or other property, the court can order that the criminal repay double the amount of his or her gain to the victim instead of a fine to the court.FN46

Cumulative Supplement

Cases:

Two-level enhancement for unduly influencing a minor under age sixteen to engage in prohibited sexual conduct was not available after conviction of attempting via the internet to persuade a minor to engage in sexual activity and traveling in interstate commerce for purpose of engaging in sexual activity with minor where victim was an undercover law enforcement officer representing himself to be a child under age of sixteen, and not an actual minor; undercover officer was not persuaded in thought or deed, and thus was not unduly influenced. U.S.S.G. § 2A3.2(b)(2)(B), 18 U.S.C.A. U.S. v. Chriswell, 401 F.3d 459 (6th Cir. 2005); West's Key Number Digest, Sentencing and Punishment 703.

Finding that defendant who, after corresponding for nearly two weeks with undercover officer over the internet and describing in graphic detail his purported sexual encounters with young children, had traveled from Pennsylvania to Wyoming on promise by undercover officer to provide him with child under age of 12 had actually intended to engage in sexual act with such a child and had not, as claimed by defendant, been engaged in mere role playing, did not rise to level of clear error, so as to support application of cross-referencing provision of sentencing guideline, given that defendant, at time of his arrest, was in possession of gift bags containing stuffed animals, as well as lubricant and various sexual paraphernalia, and had left behind him in Pennsylvania his computer laden with numerous pornographic images of prepubescent children and infants. U.S.S.G. § 2A3.2(c)(1), 18 U.S.C.A. U.S. v. Graham, 413 F.3d 1211 (10th Cir. 2005), cert. denied, 2005 WL 2922646 (U.S. 2005); West's Key Number Digest, Sentencing and Punishment 653(2).