Wednesday, October 26, 2005

Calculating Perjury

(crossposted from the Columbia Law School -- American Constitution Society blog)

While on Meet the Press on October 23rd, Kay Bailey Hutchison (R-TX), had this to say regarding the federal investigation into the CIA leak:

Tim Russert, Host of Meet the Press: Senator Hutchison, you think those comments from the White House are credible?

Senator Hutchison: Tim, you know, I think we have to remember something here. An indictment of any kind is not a guilty verdict, and I do think we have in this country the right to go to court and have due process and be innocent until proven guilty. And secondly, I certainly hope that if there is going to be an indictment that says something happened, that it is an indictment on a crime and not some perjury technicality where they couldn't indict on the crime and so they go to something just to show that their two years of investigation was not a waste of time and taxpayer dollars. So they go to something that trips someone up because they said something in the first grand jury and then maybe they found new information or they forgot something and they tried to correct that in a second grand jury. (emphasis mine)

Yesterday, Senator Hutchison backtracked on these comments, recounting the following on the hilariously titled Fox & Friends:
I was sort of misconstrued the other day, and I certainly think that if someone has lied to an investigator, of course that is a crime. It is a terrible crime.

Perhaps the Hutchison Perjury Didactic can be clarified by turning to the Federal Sentencing Guidelines for Perjury. Here, we learn the following:
§2J1.3. Perjury or Subornation of Perjury; Bribery of Witness

(a) Base Offense Level: 14

(b) Specific Offense Characteristics

(1) If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to suborn perjury, increase by 8 levels.

(2) If the perjury, subornation of perjury, or witness bribery resulted in substantial interference with the administration of justice, increase by 3 levels.


Base Offense Level works a little bit like hit points in Dungeons & Dragons -- the higher the number, the more severe the mandatory punishment.

Maybe Senator Hutchison's confusion regarding the severity of perjury relates to this base offense level. What does a base offense level of 14 mean, anyway? To learn more about this technicality/terrible crime, let's compare its base offense level with some other potential technicalities out there:

Crimes Against the Person
1st Degree Murder: 43
2nd Degree Murder: 33
Kidnapping: 32
Involuntary Manslaughter: 10 or 14
Aggravated Assault: 14

Crimes Against Property
Larceny of between $70,000 and $120,000: 14
Counterfeiting between $200,000 and $350,000: 14
Burglary of non-residence of between $10,000 and $50,000: 14

Other Crimes:
At least 5g but less than 10g of Heroin, or
At least 25g but less than 50g of Cocaine, or
At least 5kg but less than 10kg of Marihuana: 14

Promoting Prostitution or Prohibited Sexual Conduct: 14
Importing, Mailing, or Transporting Obscene Matter that displays depictions of violence: 14

Boy, there are a lot of Base Offense Level 14's out there. Senator Hutchison, are all these offenses easily confused with technicalities?

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