4 ms·

People complain about activist judges but I think a bigger problem is activist prosecuters who look to stretch the law to include targets that were not intended

People complain about activist judges but I think a bigger problem is activist prosecuters who look to stretch the law to include targets that were not intended by the law. The biggest example of this that I can think of is the anti-hacking laws that are being made to charge people of simply using a web browser.

dredmorbius 15y ago
I'd argue it's flagrant abuse of the death penalty, to the extent that several states (Illinois, New Jersey, New Mexico, New York) have banned it since 2000 on constitutional / equitable use grounds. The politicization of prosecution makes certain punishments untenable. Not that there isn't a certain amount of abuse of "anti-hacking" and similar rules. In both cases (capital crimes, small-scale / activist hacking), defendants are often have limited means (and these are often further restricted through prosecutor maneuvers), and a plausible case can be made before a lay jury. For more, see the Innocence Project: http://www.innocenceproject.org/Content/The_Death_Penalty.php http://www.innocenceproject.org/Content/The_Death_Penalty.ph... Not that I disagree with your basic premise of prosecutorial misconduct.
- RexRollman 15y ago
  You mention people of limited means. Without a doubt in my mind, the government often uses the inability of people to afford a good lawyer to convict them. And from what I have seen, public defenders leave a lot to be desired. I've heard people say that rich people get special treatment by the justice system but I suspect that they simply have to money necessary to make the system behave as it should.
_delirium 15y ago
You can see that in the comment from a prosecutor quoted in the piece that refers to "options". If you really wanted to ban some kind of behavior, the ideal outcome would be that everyone who does it is arrested, and nobody who doesn't. But from law-enforcement's perspective what they often want are "options" for prosecution--- so that when they find someone who they're pretty sure deserves to be arrested, they can dig up a statute that justifies the arrest. In that setting you actually want them as broad as possible, so you always have something in your back pocket to get someone with. Of course you don't prosecute everyone who uses a web browser... but if you find someone doing something "bad" but in a way that isn't specifically criminalized, it's always nice to have that "did a bad thing while using a webbrowser" charging option, eh? I can sort of see the motivation; nobody likes to see someone who you're 95% sure is guilty manage to beat any charges because you technically couldn't get anything solid. But it's more dangerous a cure than the disease, I think.
MaysonL 15y ago
I think an even bigger problem recently is nonactivist bank regulators: the country would probably be much better off if Geithner had allowed Sheila Bair at the FDIC to wind up Citi, Wells, BoA, etc.
starwed 15y ago
I found the article weird in that respect. None of these laws seem particularly odious -- the ones that seem unjust could have been avoided by prosecuters using their discretion. Also, I'm amused by an article about injustices in the criminal system where everyone pictured is a well-off white man.
- kstenerud 15y ago
  > Also, I'm amused by an article about injustices in the criminal system where everyone pictured is a well-off white man. That is by design, since the stereotype for "middle class" is the well-off white man, and this article is attempting to motivate the middle class. Revolutions only happen when a critical mass of the middle class switches sides.
  - dpatru 15y ago
    You're implying that the Wall Street Journal, the businessman's newspaper, is trying to foment revolution. Things must be bad indeed.

dredmorbius 15y ago

I'd argue it's flagrant abuse of the death penalty, to the extent that several states (Illinois, New Jersey, New Mexico, New York) have banned it since 2000 on constitutional / equitable use grounds. The politicization of prosecution makes certain punishments untenable. Not that there isn't a certain amount of abuse of "anti-hacking" and similar rules. In both cases (capital crimes, small-scale / activist hacking), defendants are often have limited means (and these are often further restricted through prosecutor maneuvers), and a plausible case can be made before a lay jury. For more, see the Innocence Project: http://www.innocenceproject.org/Content/The_Death_Penalty.php http://www.innocenceproject.org/Content/The_Death_Penalty.ph... Not that I disagree with your basic premise of prosecutorial misconduct.

RexRollman 15y ago
You mention people of limited means. Without a doubt in my mind, the government often uses the inability of people to afford a good lawyer to convict them. And from what I have seen, public defenders leave a lot to be desired. I've heard people say that rich people get special treatment by the justice system but I suspect that they simply have to money necessary to make the system behave as it should.

_delirium 15y ago

You can see that in the comment from a prosecutor quoted in the piece that refers to "options". If you really wanted to ban some kind of behavior, the ideal outcome would be that everyone who does it is arrested, and nobody who doesn't. But from law-enforcement's perspective what they often want are "options" for prosecution--- so that when they find someone who they're pretty sure deserves to be arrested, they can dig up a statute that justifies the arrest. In that setting you actually want them as broad as possible, so you always have something in your back pocket to get someone with. Of course you don't prosecute everyone who uses a web browser... but if you find someone doing something "bad" but in a way that isn't specifically criminalized, it's always nice to have that "did a bad thing while using a webbrowser" charging option, eh? I can sort of see the motivation; nobody likes to see someone who you're 95% sure is guilty manage to beat any charges because you technically couldn't get anything solid. But it's more dangerous a cure than the disease, I think.

MaysonL 15y ago

I think an even bigger problem recently is nonactivist bank regulators: the country would probably be much better off if Geithner had allowed Sheila Bair at the FDIC to wind up Citi, Wells, BoA, etc.

starwed 15y ago

I found the article weird in that respect. None of these laws seem particularly odious -- the ones that seem unjust could have been avoided by prosecuters using their discretion. Also, I'm amused by an article about injustices in the criminal system where everyone pictured is a well-off white man.

kstenerud 15y ago
> Also, I'm amused by an article about injustices in the criminal system where everyone pictured is a well-off white man. That is by design, since the stereotype for "middle class" is the well-off white man, and this article is attempting to motivate the middle class. Revolutions only happen when a critical mass of the middle class switches sides.
- dpatru 15y ago
  You're implying that the Wall Street Journal, the businessman's newspaper, is trying to foment revolution. Things must be bad indeed.