Daily Archives: May 16, 2008

Accidents no more: Everything’s a crime

At least in fair Norwich, CT, as this story leads me to believe. I can only imagine how this scene unfolded. Cops arrive at the scene of a fire. A building is destroyed, 14 people (including 7 children) are now homeless.

They arrest and charge the offender….who happens to be eight years old. That’s right. They arrested an 8-year old for recklessly starting a fire.

Not only that, they charged her with a felony. Now, this kid is either the devil incarnate or the whole damn thing was an accident.

The charge is Arson in the third degree, which states:

(a) A person is guilty of arson in the third degree when he recklessly causes destruction or damage to a building, as defined in section 53a-100, of his own or of another by intentionally starting a fire or causing an explosion.

Did the child’s acts fit the statute? Perhaps. Is it a crime? I really, really, really doubt it. However, since “accident” seems to have disappeared from the dictionary, this poor girl has been arrested at the age of eight, charged with a felony and will probably have some trauma from this.

Do we always have to assign blame for loss or damage? Have we become so focused on criminalization that we cannot see we are compounding these people’s misery? What is the point of this arrest? You’re going to send an eight-year old to jail? You’re going to ask her to complete probation or community service?

Reckless or not, I doubt she knows what the hell she’s doing or did.

It’s not like the Norwich police don’t have anything to do. Note that this is a Class C felony, which carries a maximum term of 10 years.

This led me to wonder: What sort of movie would The Problem Child be today? Then I realized it wouldn’t be a movie. It would be a Law and Order episode.

(Side note: Who is Law and who is Order in L A& O?)

Gay marriage legal in CA; what will CT do?

Yesterday, California’s Supreme Court issued an historic 4-3 ruling [pdf] overturning that State’s statutory ban on gay marriages. Glenn Greenwald at Salon has a terrific analysis of the ruling here. It is critical to note that this argument was made pursuant to the California Constitution, not the U.S. Constitution.

As noted in a footnote in that decision, the Connecticut Supreme Court is considering an identical issue in Kerrigan v. Comm’r of Public Health. That case was argued before the Justices one year and two days ago. Re-reading my posts on the oral argument, it seems to me that the most likely outcome is that the Court will punt the case back to the legislature. The days of the CT Supreme Court being on the forefront of progressive jurisprudence seem to be long gone.

While the year and two day delay seems lengthy (compare that to CA, where they issued their opinion in two months), it is not the longest delay I’ve seen from the Court. Further, with May being the last term of the Court, it is very likely that if we do not get a decision from them by the end of July, we won’t see one till September or October.

Anyway, this decision by the CA Court is truly a landmark decision, making California only one of two States in the country to recognize same-sex marriages (MA being the other). It is a good day for equality when a Court sees the “civil union” argument as nothing but more of the “separate but equal” travesty.

Lori Drew indicted in Myspace hoax suicide (updated)

About a year and a half ago, Megan Meier hung herself after a boy she liked and talked to via MySpace turned on her. Turns out the “boy” was a hoax; a fake profile created by Megan’s friend (and also her neighbor), another teenage girl and her friend’s mother, Lori Drew.

[Drew] claims the profile was the work of her teenage daughter and a teenage employee called Ashley Grills.

Last month, Grills, now 19, went on national TV saying that while she was responsible for setting up the fake Josh profile, Lori Drew and her daughter were also involved in the cruel hoax.

The message was supposed to end the online relationship with “Josh” because Grills felt the joke had gone too far. “I was trying to get her angry so she would leave him alone and I could get rid of the whole MySpace,” Grills said.

This is a well-intentioned indictment [pdf]. After all, a girl is dead and it seems that but for the hoax, she would be alive. Yet, there is a problem: The indictment was returned by a Federal grand jury in Los Angeles, while the Drews live in St. Louis, MO.

Local authorities in St. Louis investigated this incident last year, but were unable to find a law that Drew violated, so no one was charged.

Now, Federal prosecutors have their ham sandwich.

In their eagerness to visit justice on a 49-year-old woman involved in the Megan Meier MySpace suicide tragedy, federal prosecutors in Los Angeles are resorting to a novel and dangerous interpretation of a decades-old computer crime law — potentially making a felon out of anybody who violates the terms of service of any website, experts say.

Lori Drew, of O’Fallon, Missouri, is charged with one count of conspiracy and three violations of the anti-hacking Computer Fraud and Abuse Act, in a case involving cyberbullying through a fake MySpace profile.

Volokh Orin Kerr, correctly in my opinion, lists three major problems with this indictment:

Is it a federal crime to violate contractual limitations on use of a computer?… If the computer owner says that you can only access the computer if you are left-handed, or if you agree to be nice, are you committing a crime if you use the computer and are nasty or you are right-handed? If you violate the Terms of Service, are you committing a crime?

[T]he crime requires the government to show that Drew intended to violate the Terms of Service. That is, lack of authorization must be intentional — it must have been Drew’s conscious object to have violated the TOS.

The third hurdle, and perhaps the easiest way for the defense to win, is that the government’s theory requires proof that the goal of the conspiracy was to obtain information…Her apparent goal was to harass her victim and to cause emotional distress, not to obtain information from her.

Dan Solove at Co-Op is not so sure about the last one, but even if you take that out, I think #2 is a major hurdle. How can they ever prove that a) Drew read the TOS, b) understood that the TOS prevented her from setting up a fake profile to gather information about a daughter’s friend and c) intentionally violated the terms of the TOS? Just won’t happen.

While it would be ideal to have someone on whom to assign blame, it should not come at the risk of stretching the law to fit the circumstances of a particular case. When we start molding the law and stretching it and twisting it to reach one, individual, particularized goal, we start to make it extremely fluid and dangerous in its application.

[Update: Scott has more on this angle here.]

As we see time and again, there are profoundly tragic events that occur in society, for which there is no one who is legally at fault. This seems to be another of those. Of course, that’s no solace to Meier’s family, but this is a very attenuated application of a Federal law.

Photo credit: The Age/AP