Minimizing the crimes of women (in a serious case about federalism).

Here's how WaPo's Robert Barnes begins his report about a case of attempted murder:

A melodramatic love triangle begat a ham-handed revenge poisoning. That led to what one Supreme Court justice called an “unimaginable” federal prosecution of the scorned wife under a law enacted to implement a global chemical weapons treaty.

As long as the victim didn't actually die, it's just some kind of joke?

Now, there is a problem with the feds taking over this prosecution, and that should be the focus of the story about this case. But you should see how outrageous it is to diminish the criminal behavior in this gendered fashion.

Carol Anne Bond, a Pennsylvania microbiologist... ordered a rare blend of chemicals, partly off the Internet, and over the next several months tried to poison [Myrlinda] Haynes 24 times by putting them on her doorknob, car and, critically, mailbox.

Just some nutty lady's bumbling parry in a cat fight?

Federal prosecutors charged Bond with violating the 1998 Chemical Weapons Convention Implementation Act, a law based on the chemical weapons ban treaty that is signed by all but four of the world’s nations.

The problem here is not the unseriousness of attempted murder. It's that murder is traditionally left to the states, and the federal government is — at least theoretically — a government of limited, enumerated powers. With this important constitutional principle at stake, Bond is represented by the great ex-Solicitor General Paul Clement:

Clement...  said that if the law implementing the treaty “really does reach every malicious use of chemicals anywhere in the nation, as the government insists,” then it violates the “bedrock principle of our federalist system that Congress lacks a general police power to criminalize conduct” that does not have distinctly federal concern....

[Justice Elena Kagan] said the treaty gave Congress the power to pass implementing legislation. “So you have to find a constraint on the treaty power. Where does it come from?” she demanded.

Justice Sonia Sotomayor worried about the courts hamstringing efforts to deal with terrorism. 

Writing tip for Barnes: If you've already got "ham-handed," don't use "hamstringing." Too much ham.

“It would be deeply ironic that we have expended so much energy criticizing Syria, when if this court were now to declare that our joining or creating legislation to implement the treaty was unconstitutional,” she said.

Now, we're getting to the real meat of it. The government was represented by the current Solicitor General, Donald B. Verrilli Jr.

Chief Justice John G. Roberts Jr., who posed no questions to Clement, asked Verrilli if it would be possible for the president to join a treaty that gives national governments all powers and for Congress then to put in place such legislation.

When Verrilli said that would be unimaginable, Justice Anthony M. Kennedy shot back: “It also seems unimaginable that you would bring this prosecution.”

That led the conservative justices — plus Justice Stephen G. Breyer, who usually sides with the liberals — to unleash a barrage of hypotheticals of what could be prosecuted under the broad law, which covers chemicals that could harm humans or animals: a wheelbarrow full of kerosene; a poisoned potato given to a horse; the performance-enhancing drugs allegedly used by cyclist Lance Armstrong.

“Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?” Alito asked Verrilli, drawing laughter from the court’s spectators. He explained that chocolate Halloween candy is “poison to dogs, so it’s a toxic chemical” under the act.

Verrilli chafed, saying, “This is serious business.”

Yes, it truly is. It's easy to see Kennedy's point: The federal government shouldn't have chosen to prosecute this case. But it did, and now what? It's easy to think: The central government needs ample power to do everything that might need to be done at a national level and it should refrain from using that power to deal with matters that are better left to the states.

But it doesn't refrain.

Now playing in the Theater of Racial Reconciliation: the George Zimmerman trial.

TalkLeft says:

Lawyers for the [Trayvon] Martin family now say the case is not about racial profiling or race.... Then why did Benjamin Crump say race was "the elephant in the room." Racial injustice was the core of their argument. It was always about race to them. Race was what they used to transform this local shooting into a case of national importance.

Meanwhile, at Instapundit:

IT’S REALLY BEGINNING TO LOOK AS IF CHARGES NEVER SHOULD HAVE BEEN BROUGHT HERE: Neighbor, cop back George Zimmerman’s account of fight with Trayvon Martin.

Watching much of the trial these last 3 days, I've come to believe that the prosecution is conducting a theatrical performance in racial reconciliation. It wasn't politically easy to decline to prosecute Zimmerman, even though the evidence showed he could not be convicted, so this prosecution was mounted to demonstrate to the public that Zimmerman should not be convicted. I'm not condoning this use of the power to prosecute. I'm simply observing what is happening. I think the trial is theater, and if it's done right — with people like Crump contributing what they can — the people who got stirred up in Act I can experience catharsis.

Remember Act I? It had that wonderful cameo performance from President Obama:



He told us this was "a tragedy." Catharsis "is a metaphor originally used by Aristotle in the Poetics to describe the effects of tragedy on the spectator":

In his works prior to Poetics, Aristotle had used the term catharsis purely in its medical sense (usually referring to the evacuation of the katamenia — the menstrual fluid or other reproductive material).  Here, however, he employs it as a medical metaphor. F. L. Lucas maintains, therefore, that purification and cleansing are not proper translations for catharsis; that it should rather be rendered as purgation. "It is the human soul that is purged of its excessive passions."...

"In real life," [one scholar] explained, "men are sometimes too much addicted to pity or fear, sometimes too little; tragedy brings them back to a virtuous and happy mean." Tragedy is then a corrective; through watching tragedy, the audience learns how to feel these emotions at proper levels."

In the end, one must hope, we will come into balance.

"Are women who want to join the military now more afraid of being raped by their brothers in arms than dying for their country?"

Asks Maureen Dowd, reacting to this quote from John McCain:

"Just last night a woman came to me and said her daughter wanted to join the military, and could I give my unqualified support for her doing so. I could not."

I don't think John McCain was talking about fear. I would presume that for McCain, the courage of those in the military is understood. The question is equal opportunity in one's career, and a capable, ambitious woman choosing a career path should take account of the obstacles ahead. If one line of work is notorious for hounding women for sex and even forcing it on them and that those in charge were failing to take the problem seriously, you might decide to do something else with your life.

The Dowd column goes on to discuss the legal question of how sexual assaults should be prosecuted — inside or outside the military:

Eugene Fidell, who teaches military justice at Yale Law School, told me the arguments of the brass “boiled down to an almost mystical notion of the commanders’ responsibility. Why can’t we cut the strings to the British system we inherited from George III? The British are baffled by us. They gave control over major crimes to professional prosecutors years ago. It’s an institutional structure that has outlived its utility and credibility.”

Does Fidell want us to copy the British or to stop copying the British? We're copying the old British approach and failing to change it to what the British do now. Imagine applying that legal argument across the board. Forget all the legal principles inherited from the British at the time of this country's founding and switch to what the British have devolved into over the years. I have no idea what the right answer is about prosecuting serious crimes, but I hate the general argument about giving up our legal inheritance from the British because the British themselves have tossed it out.

Dowd continues:

As Sarah Plummer, a beautiful ex-Marine who served in Iraq and says she was raped by a fellow Marine who was never prosecuted, explained to NBC News’s Jim Miklaszewski: “Having someone within your direct chain of command handling the case” is like “your brother raping you and having your dad decide the case.”

Why specify that she's "beautiful"? I get the impression it's supposed to boost her credibility. Or do you think it's a random detail? And dad deciding the case between sister and brother is a vivid and memorable analogy, but it's not completely apt. There's an issue here to be decided — how to deal with sex assaults and sexual harassment in the military — and it should be decided with sober rationality, not iffy analogies, deference to Brits, or emotional manipulation.

Update on the case of the 18-year-old lesbian charged with a felony for having sex with a 14-year-old girl.

1. We talked about this case 2 days ago here. There were accusations of selective prosecution under the Florida statutory rape law, which require you to believe that an 18-year-old guy having sex with a 14-year-old girl would not be prosecuted.

2. The parents of the younger girl are upset about getting called homophobic (in the social media), and they defend themselves here. The video is worth watching.

3. Kaitlyn Hunt refuses the plea deal.

"The Worst Gun Control Idea Has Bipartisan Support: Why states should not pass new mandatory minimums for firearm possession."

An article in TNR by Daniel Denvir. Excerpt:

"Research over many years has shown that mandatory penalties are limited because they address severity of punishment, not certainty," says Jeremy Haile of The Sentencing Project. "Because most people engaged in criminal activity do not expect to get caught, few think about the penalties they will face if convicted."

"The decent thing to do would be to repeal all existing mandatory penalties and to enact no new ones," Tonry concludes. One reason for this is that, though they are intended to bring consistency and transparency to the justice system, mandatory minimums instead create disparity and confusion. Prosecutors use the threat of draconian sentences to compel guilty pleas to lesser charges behind closed doors and nail those who want their day in court as harshly as possible.

"Across the country, the business of growing pot is fast becoming mainstream."

Says the Wall Street Journal:

But it turns out that trying to make a profit in this business is harder than expected. When grown and sold legally, marijuana can be an expensive proposition, with high startup costs, a host of operational headaches and state regulations that a beet farmer could never imagine. In Colorado, for example, managers must submit to background checks that include revealing tattoos. The state also requires cameras in every room that has plants; Mr. Klug relies on 48 of them....

When grown and sold legally?! Why is the Wall Street Journal writing that? You can't grow and sell marijuana legally. This is all a crime under federal law.

Prices for pot, meanwhile, have plummeted, in large part because of growing competition. And bank financing is out of the question: Federal law doesn't allow these businesses, and agents sometimes raid growers even in states where it is legal.

Doesn't allow? You mean: Makes it a felony. Growing marijuana is a criminal enterprise. And there are no "states where it is legal." It is illegal in all of the states under federal law. The states are in the United States — haven't you heard?!

... Pink House Blooms is a $3 million-a-year business, with 2,000 plants in a converted warehouse in an industrial part of Denver... To get started on this scale, [Elliott] Klug says he sank more than $3 million — some of it borrowed from family — into the operation. He says Pink House Blooms is profitable, with demand up 30% some months....

His advice for anyone who wants to become rich by legally dealing pot: "Start with lots of money."

Shouldn't that be: Start by not worrying about what "legally" means? This man is attracting attention, getting his name and these big numbers in print in the WSJ, which presumably loves to profile the risk-takers of business.

Last December, President Barack Obama said his administration had "bigger fish to fry" than going after recreational users. 

Nice for the recreational users to know they aren't big enough, but what solace is that for the man trying to become rich by dealing pot? He is trying to be the big fish. He's trying to get rich in a market that anyone who refuses to commit crimes cannot enter. What a terrible situation! And yet the prices are already plummeting, we're told, because of all the competition. Klug's hope of getting rich is premised on the illegality.

"If you are 17 or under, a federal prosecutor could have charged you with computer hacking just for reading Seventeen magazine online..."

"... until today."

It’s not because the law got any better...

Seventeen highlights the absurdity of giving terms of service the force of law under the CFAA. It boasts a readership of almost 4.5 million teen readers with an average age of 16 and a half, and yet, until today, the average reader was legally banned from visiting Seventeen.com. That’s right, for a magazine dedicated to teen fashion, the publisher’s terms explicitly restricted online access to readers 18 and older.

Aaron Swartz's "family and closest friends have tried to hone his story into a message, in order to direct the public sadness and anger aroused by his suicide to political purposes."

"They have done this because it is what he would have wanted, and because it is a way to extract some good from the event. They tell people that the experience of being prosecuted is annihilatingly brutal, and that prosecutors can pursue with terrible weapons defendants who have caused little harm. One of the corollaries of this message is that Swartz did not kill himself; he was murdered by the government. But this claim is for public consumption, and the people closest to him do not really believe it. They believe that he would not have killed himself without the prosecutors, but they feel that there is something missing from this account—some further fact, a key, that will make sense of what he did."

Larissa MacFarquhar — in The New Yorker — looks at the real complexities of the Aaron Swartz story. This is an extremely impressive piece. Read the whole thing. The passage above is the best abstract summary of what is in the piece, and I'll extract a few more things that are better examples of the kind of details that flesh out that abstraction:

He disliked all vegetables and refused to eat them except in extremely expensive restaurants, such as Thomas Keller restaurants. He had ulcerative colitis, a serious digestive disorder similar to Crohn’s disease; he also thought that he was a “supertaster,” experiencing sensations of taste more intensely than regular people. Partly for these reasons, he ate only foods that were white or yellow. He ate pasta, tofu, cheese, bread, rice, eggs, and cheese pizza. He was phobic about fruit and wouldn’t touch it. He rarely drank alcohol and was careful to stay hydrated. He went through four humidifiers in his apartment in Brooklyn. He said that he left San Francisco because the air-conditioning was bad....

He became a political activist.... But he never felt as strongly about any new idea as he had once felt about them. He would adopt a cause, only to become dissatisfied, deciding that it wasn’t important enough, or was too unlikely to succeed, and he would move on to something else....

He came to believe that the influence of money in American politics was so enormous a problem that possibly little else could be solved until that was. Then again, there were always other countries: in conversation with an Australian friend, he decided that it would be ridiculously easy to “take over Australia,” but that since the country had only twenty million people it wasn’t worth it.

"Once your life is inside a federal investigation, there is no space outside of it."

"The only private thing is your thoughts, and even they don't feel safe anymore. Every word you speak or write can be used, manipulated, or played like a card against your future and the future of those you love. There are no neutral parties, no sources of unimpeachable wisdom and trust."

Tina Brown: "I mean, he'd be impeached by now for drones, if he was George W. Bush."

That was her off-topic outburst after Bill Maher said: "The Obama administration has been heavily targeting whistleblowers — true — and information activists. What can we do to hold the government accountable for this harsh crackdown?" (Maher was driving at the Aaron Swartz incident.)

And here's Eleanor Clift calling drones "a blessing."

Well, first of all, drones are here to stay. They are the 21st Century modern tool of war. And in many ways they are a blessing. Much better than bombers because they can be more effective and targeted than bomber planes just raining bombs down. With an enemy that is harbored in various places, in countries where we are not at war with the country, it’s the only way you can really get at them short of invading that country which we did and discovered that isn’t so hot. So I would say they are, they are a blessing. But, they bring all sorts of ethical and moral concerns, and there should be some sort of judicial review....

"A lot of politicians use political donations as lifestyle enhancements—getting work done on their homes, taking fancy vacations, etc."

Says Andy Shaw of the Better Government Association, a Chicago-based good-government group.

“At the very least they’re bending the rules of campaign finance and sometimes they violate them blatantly. Unfortunately the IRS and state election boards are stretched too thin to investigate. But if you end up under the microscope of the U.S. Attorney that all changes … Jesse Jackson Jr. is not an outlier here, but he’s the one who got caught. There are a lot of politicians who are probably saying ‘there but for the grace of God go I.’”

Chicago politics... another federal prosecutor persecuting somebody... what angle do you want to take here?

"The other night, when [redacted] asked me why I switched from computer science to sociology, I said..."

"... it was because Computer Science was hard and I wasn’t really good at it, which really isn’t true at all... The real reason is because I want to save the world," wrote Aaron Swartz, quoted in a long article titled "The Idealist: Aaron Swartz wanted to save the world. Why couldn’t he save himself?"

"Swartz didn't face prison until feds took over case..."

"The late Internet activist was facing a stern warning from local prosecutors. But then the U.S. Attorney's office, run by Carmen Ortiz, chose to make an example of Aaron Swartz, a new report says."

The report is likely to fuel an online campaign against Ortiz... An online petition asking President Obama to remove from office Ortiz — a politically ambitious prosecutor who was talked about as Massachusetts' next governor as recently as last month.

There's a hot campaign to destroy Ortiz. Note that there's also this other case where she's accused of "bullying" a motel owner, in what she calls "strictly a law-enforcement effort to crack down on what was seen as a pattern of using the motel to further the commission of drug crimes for nearly three decades." Ortiz is considering appealing in that case, and the Boston Herald has the headline: "Ortiz to motel owner: We’re not done yet." It's not like she said we're not done yet.  That's the newspaper's paraphrase of "We are weighing our options with respect to appeal."

Is the prosecutor getting bullied? If she were to commit suicide — Swartz-style — would everyone feel ashamed of what they did to her?

No one cries for a prosecutor.

"With Aaron's death, we can wait no longer."

"This time there will be change or there will be chaos."

Aggressive prosecution #2: Internet activist driven to suicide.

The Wall Street Journal delves into the prosecution of Aaron Swartz:

Mr. Swartz's lawyer, Elliot Peters, first discussed a possible plea bargain with Assistant U.S. Attorney Stephen Heymann last fall. In an interview Sunday, he said he was told at the time that Mr. Swartz would need to plead guilty to every count, and the government would insist on prison time....

With the government's position hardening, Mr. Swartz realized that he would have to face a costly, painful and public trial....

He knew what he was doing was criminal, and he was a very intelligent man who chose to do it anyway and conceived of what he was doing as actively virtuous. Wouldn't a public trial serve his purposes in critiquing the laws he opposed and arguing for the liberation of the data files he tried to set free? (I'm picturing Swartz as a bit like those animal rights activists who steal into a mink farm and open all the cages. They believe that they are serving a call of morality higher than the interests embodied in the law they willingly violate.) It's civil disobedience, which — in classic form — demands that you take the law's punishment. That's part of the acted-out argument that the law is immoral.

"It was too hard for him to ask for the help and make that part of his life go public," [his girlfriend, Taren Stinebrickner-Kauffman] said. "One of the things he felt most difficult to fathom was asking people for money."

His crime was about making more information freely public, and yet he cringed at publicity about his own plight, even where his plight was something he invited into his life and believed in as an especially good thing to do. Why the shame? Why not expose yourself as a martyr to laws you oppose?

Swartz's girlfriend and family released a statement saying: "Aaron's death is not simply a personal tragedy.... It is the product of a criminal justice system rife with intimidation and prosecutorial overreach." Understandably, they want to infuse their loss with meaning. But did the prosecutors go wrong?

The Massachusetts U.S. attorney's office declined to comment Sunday, saying it wanted to respect the family's privacy. But in a news release from July 2011, when the charges in the case were announced, U.S. Attorney Carmen Ortiz said, "Stealing is stealing, whether you use a computer command or a crowbar."...

The government indicated it might only seek seven years at trial, and was willing to bargain that down to six to eight months in exchange for a guilty plea, a person familiar with the matter said. But Mr. Swartz didn't want to do jail time.

"I think Aaron was frightened and bewildered that they'd taken this incredibly hard line against him," said Mr. Peters, his lawyer. "He didn't want to go to jail. He didn't want to be a felon."

But he knowingly and willingly committed numerous felonies, did he not? I'm not hearing the lawyer say that Swartz didn't do what the prosecutors said he did. The argument was that the law ought to be different. If you break the laws as a way to make that argument, how is the prosecutor supposed to respond? Your argument is to the public and to the legislators.

To say he didn't want to be a felon is to express a wish about the past. And it's a wish that wasn't even true. Swartz wanted to be a felon who eludes prosecution. Who gets that wish in a system of law? The intelligent, educated, nice-looking, good guy with lovely friends and family? The person who credibly threatens self-murder? The activist capable of articulating why the crime he committed should not be a crime? 

Aggressive prosecution #1: California businessman commercially growing medical marijuana.

Adam Nagourney, in the NYT, gives very sympathetic treatment to Matthew R. Davies — "a round-faced 34-year-old father of two young girls" with "graduate-level business skills" who "paid California sales tax and filed for state and local business permits" and got the advice of many lawyers as he set up an enterprise that plainly and overtly is a felony under federal law. Davies told the NYT:

“We thought, this is an industry in its infancy, it’s a heavy cash business, it’s basically being used by people who use it to cloak illegal activity. Nobody was doing it the right way. We thought we could make a model of how this should be done.”

Cloak illegal activity? It is illegal activity. Federal law is real. Haven't you heard?!

The right way? Cloaking is the right way when you're committing crimes. With your business education, somehow you were all: Hey, what a smart idea I have — being completely out in the open about breaking the law. Why hasn't anybody else thought of this?

And I love the way the NYT suddenly has a pro-business orientation. Davies deserves special grace under the law because he's using the structure of business and because he's excited about making big profits! Compare that to all the articles anguishing over Citizens United and how terrible it is to respect free speech rights when the speech comes from a place that is structured as a business.

“Mr. Davies was not a seriously ill user of marijuana nor was he a medical caregiver — he was the major player in a very significant commercial operation that sought to make large profits from the cultivation and sale of marijuana,” [said a letter from United States attorney for the Eastern District of California, Benjamin B. Wagner, a 2009 Obama appointee.] Mr. Wagner said that prosecuting such people “remains a core priority of the department.”...

“It’s mind-boggling that there were hundreds of attorneys advising their clients that it was O.K. to do this, only to be bushwhacked by a federal system that most people in California are not even paying attention to,” said William J. Portanova, a former federal drug prosecutor and a lawyer for one of Mr. Davies’s co-defendants. “It’s tragic.”

Yes, and it is mind-boggling that those who argue for the broad interpretation of federal power and who scoff at the idea of the 10th Amendment and reserving powers to the state somehow can't grasp the meaning of their general propositions when they encounter an issue where they prefer the state policy to the federal policy. The NYT and other drivers of elite opinion ought to have to face up to the reality of what their legal propositions entail.

And quite aside from the problem of the allocation of power at the federal and the state levels, how about some consistency about equal justice under the law? Let the law — as written — apply the same way to everyone, whether they have a round face and 2 young daughters or not, whether they've gone to grad school or not, whether they have big visions of massive profits or they are living hand to mouth. If the law is wrong, change the law — for everybody. Don't cry over the people you think are nice — like David Gregory and Aaron Swartz. Nonphotogenic and low-class people deserve equal treatment, and cutting breaks for the ones who pull your heart strings is not justice.

D.C. attorney general confirms that law is for the little people.

No charges will be filed against David Gregory "despite the clarity of the violation of this important law, because under all of the circumstances here a prosecution would not promote public safety in the District of Columbia nor serve the best interests of the people of the District to whom this office owes its trust."

The clarity of the violation of this important law....

Why is the law important? If Gregory clearly violated the law, but there is no interest to be served in prosecuting him, doesn't that prove that the law is not important? If the precise thing that he did — which is clearly what is defined as a crime — raises no interest in prosecution, how can we be satisfied by letting this one nice famous man go? Rewrite the law so that it only covers the activity that the government believes deserves prosecution, so there is equal justice under the law.

"Gregory had no intent to commit a crime; he was committing journalism instead."

"Gun owners often say they want the government to leave them alone; why then are some clamoring for Gregory to be prosecuted?"

Asks Howard Kurtz, with amazing naivete. The implied argument is quite weird and perverse.

First, he's got this either/or premise: If you're doing one thing, you're not doing something else. If you're doing journalism, you can't also be doing something else. That might make sense if the crime in question had a required mental element that would be negated by the intent to "commit journalism," but it doesn't. Mere possession is enough. The most virtuous individuals with the best intentions get stuck with this law applying to them. If you don't like that, then you don't like this law. You've got an objection to the law, and yet, ironically, Gregory was arguing for more laws like that! That was the nature of the "journalism" he was "committing." He ought to be the first one prosecuted, not the last.

Second, Kurtz, a journalist himself, is mired the same sense of entitlement that people are objecting to in Gregory. He thinks journalists are special people who float above it all, who don't live in reality. You are the very people who are supposed to be observing reality, understanding it, and explaining it. But you don't even see that you are part of it. You have less awareness of it than the people you're getting paid to inform. Maybe you think you're just too important to have your time wasted by consequences that would befall ordinary people. You need to be free to continue to sit there mouthing outrage about the next terrible thing that befalls some ordinary person out there in the real world.

Third, Kurtz thinks he's caught others in hypocrisy. If gun owners want the government to leave them alone, why would they want Gregory to be prosecuted? It's like Kurtz wants us to laugh in his face. Yet he seems to think he's being quite clever. Why would he think that? Puzzling, isn't it? My only answer is that he does not believe in the rule of law. It doesn't occur to him that what gun owners who "want the government to leave them alone" want is for legislatures to refrain from passing laws and to repeal existing laws and for courts to declare laws null under the Second Amendment. Why should these people like it if one privileged, prominent man escapes prosecution? The laws remain, affecting everyone else, even as the oppressiveness of the laws is falsely minimized.

"Certainly, if LaPierre had shown up with that magazine, there would be howls of gotcha, and widespread media demands for prosecution.

"Why should NBC News and its star be above the law?"