A story on Threat Level yesterday by Kim Zetter reported that hacker Albert Gonzalez has submitted court filings seeking reduced sentence based on diminished capacity under USSG §5K2.13. The defense reportedly submitted a report by a psychologist that indicated that Gonzalez’s behavior was consistent with Asperger’s Disorder and that Gonzalez may have been impaired in his ability to know right from wrong in evaluating his behavior.
USSG §5K2.13 of the sentencing guideline states:
A sentence below the applicable guideline range may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity. However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; or (3) the defendant’s criminal history indicates a need to incarcerate the defendant to protect the public. If a departure is warranted, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.
An application note for the guideline clarifies:
“Significantly reduced mental capacity” means the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful.
Most individuals with Asperger’s that I have worked with have a heightened sense of right and wrong, and while they may engage in repetitive behaviors or have trouble conforming to social expectations, I know of no link between Asperger’s Disorder and this type of criminal behavior other than hacker Gary McKinnon’s attempt to also raise it as a defense in his case (and Viachelav Berkovich’s case). But based on the language in the sentencing guidelines, it seems possible that the defense might argue that hacking was a repetitive — almost compulsive — behavior that Gonzalez could not control even though he knew it was wrong/illegal. If they’re arguing that he actually was significantly impaired in his ability to evaluate the wrongfulness or illegality of his actions, I think they’d have a tougher argument to make, but of course, I’ve never assessed Gonzalez nor read the psychologist’s report and findings.
Today, defense attorney Martin Weinberg submitted a response to the government’s response to the memo to the court. The defense did not object to a continuation but did object to what seems to have been a government request to have their own expert evaluate Gonzalez. The defense memo says, in part:
the government cites no authority for requiring the defendant to submit to examination by a government expert for purposes of sentencing, and there is none of which the defendant is aware except in capital cases. Fed. R. Crim. P. 12.2(b) and 12.2(c)(1)(B) authorize the Court to authorize an examination of the defendant only if “a defendant intends to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant bearing on either (1) the issue of guilt or (2) the issue of punishment in a capital case” (emphasis added). Defendant objects to any compelled examination by the government.
You can read today’s defense memo here.
Update/Note: Just to be clearer: there have been forensic studies and reports of individuals with Asperger’s engaging in criminal behavior, but so far, most of the cases I’ve read have been sexual or violent crimes that have been possibly linked to empathy issues and they are only a very small subset of individuals with Asperger’s. It is only within the past year that I can recall seeing Asperger’s used as part of a defense in hacking cases or non-violent crime. In two of the three cases, there was a financial aspect to the crime or a financial benefit to the individual who committed the criminal behavior. In the third case, Gary McKinnon’s case, the motives did not appear to have any financial aspect or produce any financial benefit. Should that make a difference in the court’s consideration?
If readers know of other cases, please post them.