Category Archives: Law: Criminal Law

The dissent rightfully, in my opinion, points out that Baze has as much to do with abuse of discretion for denying 12(b)(6) motions to dismiss as does a hot dog.

That’s Corey Yung, writing in What do a Writ of Mandamus, 12(b)(6), the Death Penalty, and a Batson Challenge Have in Common?, in an interesting discussion of procedural issues in a recent 8th Circuit opinion in method-of-legal-execution case. That dissent is pretty convincing on some other issues too, by the way.

(I post this in fear that someone will come along and say it’s really some kind of metaphor.)

In I Got Myself Arrested So I Could Look Inside the Justice System Bobby Constantino, a former prosecutor, discovers a number of things: it’s tough to get arrested for a misdemeanor while white; cops routinely mistreat prisoners in urban jails; probation officers couldn’t really care less.

If any of these sound like they might be news to you, you should read his well-written article in the Atlantic.

Shocking story in the Guardian: California was sterilizing its female prisoners as late as 2010 — without, it appears, required authorizations from state officials. (Even the idea that there’s a procedure is troubling given the history of bad eugenics-based thinking in the US.)

Anyone who is, or is thinking of becoming, a prosecutor ought to read Life Inside the Aaron Swartz Investigation for Quinn Norton’s account of what it feels like to be a witness in a prosecution, including in a grand jury proceeding. I doubt that much of it, especially the run up to the grand jury, was an unusual experience, which will make it all the more instructive to participants in the legal system.

I haven’t written about the Aaron Swartz story because I don’t have much to say that hasn’t been said well and often elsewhere. What’s publicly available does suggest that prosecutors took a surprisingly tough line with Aaron Swartz (whom I believe I only met once, briefly, but who left a comment here once). This tough approach is consistent with an attitude I think is common to a lot of law enforcement and, sadly, judges, in that they see “hackers” as evil creatures akin to Tim May‘s ‘four horsemen of the Infocalypse‘.

I’m not, by the way, a fan of the ordinary grand jury, which I think has strayed far beyond what it was and should have been, and has become a too-pliant tool of the prosecution. Interestingly, Florida does it better: as well as using local grand juries to hand down first degree murder indictments, statewide grand juries here investigate social problems and come up with frequently sensible reports and recommendations often aimed at spurring legislation or administrative reform.

And it’s more than clear that we need to reform the Computer Fraud and Abuse Act, along the lines of the “Aaron’s Law” proposal making the rounds.

All that said, and assuming the most noble of motives on Aaron Swartz’s behalf, it also seems to be the case that breaking into a server closet at MIT and inserting a machine there that availed itself of the data stream isn’t nice and wasn’t legal. There was at least petty crime, and perhaps more depending how one valued the data acquired. What is at issue to me regarding the feds (as opposed to, say, MIT) is not so much the fact of a prosecution but rather the means used to go about it. Then again, I suspect these means were standard operating procedure, which is the real issue.

(Spotted via Cory Doctorow, Inside the prosecution of Aaron Swartz.)