Note: This analysis is that of the author and no one else.

Not content with the suicide last year of his longtime business partner and co-defendant Jim Larkin, prosecutors seek to consign famed journalist and editor Michael Lacey and his two co-defendants to a staggering 20 years in prison each, a likely life sentence with the possibility of death in prison given that all three men are in their 70s.

In an Aug. 19 sentencing memo filed in Phoenix’s federal court one week ahead of an Aug. 27th sentencing date before U.S. District Court Judge Diane Humetewa, prosecutors smeared Lacey with crimes that he and the others are not charged with and could never be charged with: sex trafficking, child sex trafficking and an array of murders.

Such accusations are false, heinous in the extreme and were largely excluded from their 2023 trial. Lacey and the others have never physically harmed anyone and have never been accused of doing so.

Government attorneys are also asking that Lacey, who turned 76 in July, be remanded into custody to begin serving his time. They ask the same of his two co-defendants. It’s not clear if the government wants that to happen on Aug. 27 or a later date.

In the memo, the prosecution contends that the defendants “owned, operated and profited from one of the internet’s largest and longest running criminal enterprises,” i.e., the classified listings site, Backpage.com, which the government seized and destroyed in 2018 in a flagrant First Amendment violation.

Backpage, of course, was not an illegal enterprise. The site’s right to publish adult-themed ads was upheld on numerous occasions by a series of federal and state court rulings.

Nonetheless, that same year, the feds arrested and charged Lacey, Larkin and four others on 100 counts of money laundering, conspiracy and violations of the U.S. Travel Act, which makes it illegal to facilitate a business engaged in breaking certain state laws, like those against prostitution.

The prosecution, now in its seventh year, foundered in Sept. 2021, during the first trial, after government attorneys cried “sex trafficking” nonstop, forcing the previous judge to declare a mistrial. During the proceedings, one of the prosecution’s chief witnesses, a California cop, admitted that he could not arrest someone based on the content of Backpage’s adult ads, making the ads, de facto, legal.

Larkin, driven to despair by a never-ending prosecution and impoverished by pre-trial seizures of nearly all of his assets, killed himself shortly before the start of the second trial in 2023.

After 11 weeks of testimony, the jury first deadlocked, then returned a mixed verdict.

Two former Backpage employees were found not guilty on all charges. Two ex-executives of the company were found guilty on a variety of counts. And Lacey, who co-owned Backpage with Larkin from 2004 to 2015, was found guilty of one count of international concealment money laundering and not guilty on another money-laundering count. The jury was hung on 84 counts against Lacey.

The government initially signaled that it wished to retry Lacey on those 84 counts. But in a post-trial decision, Humetewa acquitted Lacey on 50 of the 84 counts.  Prosecutors now want to await the inevitable appeals and “guidance” from the appellate court before deciding whether to proceed.

The government, the defense and Judge Humetewa all agree that there are significant issues to be decided on appeal. Some sure to be raised with the Ninth Circuit involve the First Amendment, the jury instructions and the meaning of the Travel Act, in addition to others.

Lacey’s one conviction is problematic for the prosecution because the transfer of money at issue to a European bank was not “concealed,” but was reported to the government as required by law. Lacey’s attorney testified at trial that, the government’s accusations notwithstanding, the transfer was lawful.  The jury’s verdict is contrary to the facts.

Calumny Unearned

The government cites a number of victim impact statements, compares Lacey and the others to the mafia, and, generally, seeks to blame the defendants for horrific crimes committed by others, using material largely kept out of the second trial.

Prosecutors claim the defendants were motivated by “greed” to obtain “millions of dollars in compensation.” The government counts industry-standard moderation practices and Backpage’s policy of responding to subpoenas within 24 hours as fig leaves for wrongdoing.

On the contrary, Backpage’s existence helped law enforcement fight sex trafficking and rescue endangered women and children. A 2021 report from the Government Accountability Office, found that advertising for legal adult services moved overseas in response to the takedown of Backpage and the passage of FOSTA/SESTA. According to the report, because Backpage no longer exists to partner with law enforcement, “the FBI’s ability to identify and locate sex trafficking victims and perpetrators” has been “significantly decreased.”

The implications are chilling. Not only has the government further endangered vulnerable women and children with its policies, it seeks to have Lacey and the others sentenced to lengthy prison terms based on a McCarthyite logic that would make the owners and operators of social media sites responsible for the misdeeds of others.

What’s next, will the government abuse its power and improperly pursue Craig Newmark because the Gilgo beach murderer, aka, “the Craigslist Ripper,” used Craigslist.org to connect with victims? What about the 100-plus other murders supposedly connected to Craigslist or the child sexual exploitation allegedly tied to Facebook and many other social media sites? Will Mark Zuckerberg and the other CEOs get perp-walked, too?

The government says it needs harsh sentences in this case to “deter” websites from publishing content the government claims is associated with illegal activity. Which sounds like a threat to prosecute website owners if the government’s dictates are not obeyed.

The government’s brief says that it is unaware of “any mitigating circumstances” regarding the defendants, despite the exemplary, law-abiding lives they’ve led so far. Prosecutors insist that the defendants should not be considered first-time offenders, though they most certainly are.

Lacey’s attorneys filed a sentencing memorandum on his behalf on Monday, recounting his traumatic youth and how he rose above it to lead a newspaper chain that won 3,800 writing awards, including a Pulitzer, by fighting corruption while championing freedom of speech.

The memo for Lacey points to support statements from Latino civil rights leaders and the former head of the local NAACP chapter, testifying to Lacey’s courage, generosity and lifelong struggle against injustice.

Lacey’s memo argues against incarceration, noting Lacey’s age and attendant health ailments. Though Lacey’s one conviction is for a financial crime, the government’s pre-sentence report “incessantly discusses child-sex trafficking,” making it likely that Lacey “will be classified as a sex offender,” and turning him into a possible target of assault or a candidate for solitary confinement, which Nelson Mandela referred to as “the most forbidding aspect of prison life.”

The memo adds, “Whether kept in general population or in solitary confinement, [Lacey] is not expected to live even four years.”

And that would truly be a crime . . . on par with driving Larkin into the abyss.

Please also see:
The Late Jim Larkin Looms Large in Reason’s New Documentary on Backpage.com
and
Prosecutors Want Lacey Sentenced on Bogus Allegations