Crime and Punishment

by Justice William W. Bedsworth

My first year criminal law professor spent a great deal of time – an inordinate amount of time, I thought then – on the philosophy of punishment. I was a lot more confident at twenty than I am now of my ability to recognize a waste of time, and the weeks we spent debating the efficacy vel non of deterrence, retribution, incapacitation, and rehabilitation, satisfied my definition thereof as well as this column satisfies most others.

I knew why we punished people. We punished them for the same reason my mother spanked me when I was a kid: They’d gotten out of line. And the legislature told us how to punish them. We had an elaborate scheme of punishment schedules and a collection of bureaucrats, the Board of Prison Terms, to apply them.

It seemed pretty simple to me. Find the crime in Column A, find the punishment in Column B, impose sentence. How tough could this be?

Well, now I’ve spent a good part of forty years lamenting just how tough it could be. Granted, this is partly because the legislature broke into the peyote locker in 1977 and enacted the trainwreck in a blizzard we now refer to as the Determinate Sentencing Act.(1)

But mostly it’s just because punishment is damned difficult. Professor Kadish, I am apparently the last person to figure out there was method in those weeks of madness.

Ask any criminal courts judge what his/her most daunting task is. If the answer isn’t sentencing, you’re talking to someone with no heart and an advanced degree in mathematics. The rest of them are herniating their frontal lobes trying to figure out the appropriate range of sentence, and then burning out their stomach lining worrying about where in that range their defendant belongs.

When I was a trial judge, my staff knew from the moment I walked in on a Friday morning whether I was going to send anyone to state prison. You remember the Li’l Abner comic strip character Joe Btfsplk, who walked around with a little black cloud over his head? Well, when I had to send someone to state prison, that cloud was right behind my eyes, and my staff saw it immediately. My clerk and bailiff would compete to see who could correctly guess which orange jumpsuit had drawn the short straw.

I’m very glad I don’t have to do that anymore. It was always very hard, and appears to me to have gotten much harder. Just yesterday, I read of a woman in Japan who has been jailed on a charge of avatar murder.

No, that is not a typo. Avatar, not aviator. Aviator murder I could handle. I might not like it, but I’m confident I could devise an appropriate sentence for aviator murder.(2)

But avatar murder is a different thing entirely. And if, like me, you are old enough to remember once flying on a plane that made three stops on its way to Minneapolis, the odds are you would be as befuddled as I by an indictment that alleged avatar murder.

An avatar is a character in a computer game. Remember when you were a kid playing monopoly and you got to pick whether you wanted to be the top hat or the race car or the iron or the thimble or whatever?(3)

Well, the present generation has a broader selection. And when they choose, they get to pick character traits, eye colors, bra sizes, magic powers, weapons, sidekicks, etc. The character they build is their avatar.

If you consider the original meaning of the word – the incarnation of a god who has come down to earth to mingle with the mortals – you’ll have a pretty good handle on what most avatars are like. They’re just like the game player only cooler, smarter, faster, taller, prettier, and . . . well . . . you get the idea: just choose any favorable adjective and ratchet it up a coupla notches. I mean, why would you want to be yourself in virtual life when you could be a cross between Hugh Jackman and Gandhi?

So this nice, quiet, 43-year-old piano teacher in Sapporo created an avatar for a game called Maple Story, described by the Associated Press as one in which players “engage in social relationships and fight monsters and other challenges.” I can’t speak to the quandaries encountered in Maple Story, but I’d rather fight a monster than engage in a social relationship any day. And sure enough, the social relationship part is what got this lady thrown in jail.

Ms. Doe(4) closed the book on Chopin and Haydn one day and fired up the computer for a round of monster-battling, only to receive the disconcerting news that her virtual spouse had divorced her avatar. Divorced! Without warning!

No lipstick on the collar, no long unexplained business trips, no emotional withdrawal, no couples counseling, nothing! The sonofagun just said, “I divorce you,”(5) and moved on. Without explanation. Just left her there to fight the monsters alone.

She was, of course, distraught. Divorce is always difficult. And this one was greatly complicated by the whole monster thing.(6) Apparently unable to retain a virtual Gloria Allred, Ms. Doe released her own statement: “I was suddenly divorced, without a word of warning. That made me so angry.”(7)

But as commonplace as her public statement might have been, Ms. Doe’s revenge was a tour de force of imagination befitting someone with a background in monster eradication. Using login information she obtained when their characters were happily married – virtually – Ms. Doe logged in with her virtual husband’s password and caused his avatar to walk in front of a truck.

Yep. Flattened him. Dead before the virtual paramedics arrived.

I don’t know what the Maple Story District Attorney is doing about it, but the Sapporo police have thrown Ms. Doe’s REAL self in REAL jail. Real self faces five years in prison and/or a fine of up to $5,000 for illegally accessing a computer.(8)

Now you tell me: What is the appropriate sentence for this crime? Is this more serious than kicking over somebody’s monopoly board just because it was done with a computer? Are we really going to put people in prison for sneaking additional Risk armies into South Africa or employing a crooked Game of Life wheel, just because the games were being played on-line instead of on-kitchen-table?

This is a sentencing dilemma that will – like Putin in Alaskan air space – raise its ugly head more often in years to come. In Tokyo, police arrested a sixteen-year-old boy for manipulating another player’s computer game stock portfolio and swindling him out of $360,000 in virtual kopecks or cyber drachmas or whatever currency they use in Computoworld.

You tell me: Grand theft because it’s $360,000 for crying out loud, or petty theft because it’s ZERO for crying out loud. Yeah, I know he stole the guy’s password and broke into his computer, but he did it to win a game of 21st century Parcheesi . . . for crying out loud.

These are tough calls. I hope they don’t reach this country until I’ve retired.(9)

But when they do get here, I suggest we ask Judge Paul Sacco of Fort Lupton, Colorado, to take a crack at them first. Judge Sacco’s job includes sentencing noise ordinance violators – especially loud car radio offenders, the ones who pull up beside you in teeny-tiny little cars with speakers bigger than a Wal-Mart, the output of which makes your car shake so violently your bone marrow sloshes around in your sternum for weeks afterward and you have to buy new shocks for your car.(10)

Judge Sacco’s solution? Well, the crime was forcing people to listen to music they didn’t want to hear, so the punishment should be making the violators listen to music they don’t want to hear.(11) So he rounds up all these mostly-teenage criminals and makes them sit and listen to Barry Manilow and Barney the Dinosaur for a few hours.

I don’t know how well this works. You are, after all, reading the thoughts of a man whose phone plays Merle Haggard’s “Mama Tried,”(12) and who usually lets it ring for awhile so he can listen to the song. I am, perhaps, not the right person to be evaluating the efficacy of musical punishment.

But judging from the pictures of the miserable teenagers subjected to this penalty in Colorado, it is successful enough to raise Eighth Amendment concerns. I hope someone took their belts and shoelaces away from them before the music started. They look like they would have preferred Alabama’s famous “Old Sparky” to this.

Who knows? If we can get Manilow and Barney to record a few duets, we may have an appropriate punishment for avatar abuse.

But “we” is probably not the appropriate pronoun here. I don’t think I’ll tackle this one. I think I’ll leave it for the next generation of judges. I’m gonna go home, light a fire, open a good book, and stare at the ocean.

I’ll leave these monsters for my avatar. And Professor Kadish.

BEDS NOTES
(1) Anybody ever tries to tell you how crazy the sixties were, point out to them that at least we had a criminal sentencing scheme that didn’t require a phone call to Stephen Hawking to sentence a burglar.
(2) Although, if I were doing it in California, I’d need to employ a desktop, a laptop, three sentencing algorithms, the collected works of Judge Jack Ryan, and a Ouija board. And I’d need to start within 72 hours of the commission of the crime to be done by the sentencing date.
(3) I always chose the top hat. Not sure why, except that the other choices were remarkably unappealing. An iron?
(4) None of the dozens of news stories covering this event provides her name. I find this remarkable: You kidnap a baby or rob a bank, media reports provide your name and age; but if you’re charged with something as depraved as erasing a computer game character, they feel obliged to protect your privacy.
(5) Apparently the middle eastern version of the game requires this phrase to be repeated three times, but the Japanese edition only requires once. I’m told the American edition requires lawyering up by both sides and much virtual shouting.
(6) AP does not disclose whether there were virtual children involved.
(7) It’s banal and pedestrian statements of outrage like this one that make you appreciate Gloria Allred.
(8) Apparently leaving the avatar to collect her dead husband’s insurance and run away with Michael Douglas’ avatar, which is what she had in mind all along.
(9) A woman in Delaware was indicted last August for attempting to kidnap the real-life person whose avatar she’d fallen in love with on-line, but I think I can handle real-life crimes; it’s the virtual ones I’m having trouble getting my head around.
(10) I suppose that sentence forfeits my claim to objectivity on this point.
(11) Judge Sacco, meet Professor Kadish.
(12) “I turned twenty-one in prison, doing life without parole. No one could steer me right but Mama tried, Mama tried. Mama tried to raise me better, but her pleading I denied. That leaves only me to blame, ‘cause Mama tried.” Who says there are no Walt Whitmans anymore?

William W. Bedsworth is an Associate Justice of the California Court of Appeal. His nationally-syndicated humor column, A Criminal Waste of Space, has once again been recognized by the California Newspaper Publishers Association. In the association’s annual Better Newspapers Competition, ACWOS was chosen best column in a small daily publication (the San Francisco Recorder). It is the third time the CNPA has honored ACWOS in the past five years. The award was presented at the CNPA’s annual convention in Universal City on October 25. He can be contacted via email at William.bedsworth@jud.ca.gov.