How Mother Jones makes my case against the assault weapons ban

Nota Bene: Given the sensitive nature of the subject, I want to reiterate my blog's disclaimer that this is a personal blog and not to be associated with my employer or imply their endorsement. Thanks, JPB

As we anticipate the coming fight over whether or not Congress should reinstitute the nationwide Assault Weapons Ban, I'd like to thank Mother Jones for making my case for me: no.

Now, in recent months—well before the tragedy at Newtown—a few folks at MoJo had been reporting on mass shootings and their recent frequency. They started collecting data on the numerous shootings over the past 30 years or so and recently put it all in a very convenient spreadsheet. If you click on the “weapon categories” tab, it breaks down the number and types of weapons used in each attack. What I found interesting is that assault weapons, the floated focus of the President's gun proposal, are used in a minority of the mass shootings. In addition, there were nearly as many used in mass casualty events during the 10 years of the last assault weapons ban (13) as there were in the 12 years previous (14). Since the expiration of the AWB in 2004, there have been 8 assault weapons used in mass shootings.

So, what we have is national legislation aimed at 35 weapons that were used in 25 instances over 31 years in a nation that contains approximately 300 million guns. What's more, the last time this ban went into effect, it failed to stop the acquisition and use of over a third of all assault weapons used in mass shootings since 1982. This legislation is likely to be wholly impotent to stop mass violence—the catalyst for this legislation.

In no other arena of public policy, save perhaps drug policy, would such inefficacy be so proudly touted as meaningful. And perhaps most frustrating, there is going to be so much self-righteous ink spilled all over this absolutely worthless legislation that, even if passed, will have no meaningful effect on gun violence. What a miserable waste of time and energy is on the immediate horizon. 

Welcome to D.C.'s latest dog and pony show.

bellum medicamenti delenda est

Aaron Swartz And Our Broken Justice System

I didn't know Aaron Swartz, and I have no idea whether his legal troubles contributed to his decision to kill himself Friday. But I do know his federal prosecution for downloading copyrighted information from JSTOR, the online database of social science articles, was overzealous and out of proportion for the alleged offense he committed. Indeed, even JSTOR itself was not supportive of the federal government's actions against Swartz.

For some context, I turn to Swartz's friend and one-time lawyer, Harvard Law professor Lawrence Lessig:

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed. (emphasis in original)

I would think most of us who deal with academic articles and journals for a living think of the services like JSTOR and Lexis-Nexis as quasi-necessary gatekeepers to information we can get on our computers that save us a trip to the local law library. (Indeed, I have a much higher respect for Swartz's similar actions against PACER, a service that charges $0.10 per digital page viewed of court—i.e., public—documents that have no protection of copyright or intellectual property claims. The DOJ opened an investigation but then dropped the case.) But I don't think any of us who may have shared a file against the terms of service should be prosecuted for essentially doing what Swartz did, albeit on a much larger scale.

The United States Attorneys office increased Swartz's original four felony charges to thirteen this past September. Before the increase, Swartz was already facing a potential $1m fine and 35 years in prison for taking the gates off of academic articles. Even if we decide that we want these things to be policed, a 35-50 year prison sentence for temporarily opening a backdoor to information academic navel gazing is patently absurd.

But while many are outraged at the actions of the U.S. Attorney in the wake of Swartz's death, it should be said that over-prosecutions are standard operating procedure for U.S. Attorneys offices across the country. As I've documented before, U.S. Attorneys—and Assistant U.S. Attorneys—have a very wide latitude in whom they prosecute for what offense. Even when a directive from Washington says, for example, "Don't go after medical marijuana dispensaries that are in compliance with state laws," U.S. Attorneys ramp-up efforts and prosecutions. Just this past week, Aaron Sandusky was sentenced to 10 years in federal prison for compliance with state law.

Being in the U.S. Attorney's office is often a stepping stone professionally. On one hand, an "accomplished" USA/AUSA can walk into a partnership at a Big Law firm, a giant payday which may be a professional end point in itself. On the other, some USAs/AUSAs have higher goals, such as federal judgeships or political office. Former Massachusetts governor William Weld made a name for himself zealously prosecuting white collar crime as a U.S. Attorney, and former mayor of New York City and one-time presidential candidate Rudy Guiliani made his bones taking down organized crime as U.S. Attorney in the Southern District of New York. (In that district alone, former AUSAs include, inter alia, two former Supreme Court justices, a governor of New York, one prominent Congressman, a former FBI director, and a former U.S. Attorney General.) If you're an ambitious young lawyer, the U.S. Attorneys Office is the place for you.

Behind any high profile federal case, there is a USA or AUSA standing to gain professional notoriety for it. The Martha Stewart insider trading investigation made headlines, but it turns out her initial "crime" was nothing, so she was actually prosecuted for making false statements to investigators. (That charge, too, was weaksauce.) Nevertheless, the man who prosecuted Stewart became the number two man at the DOJ and, for a time, Acting U.S. Attorney General. His name has also been bandied about for a possible SCOTUS nod. After all, at the end of the day, he got a conviction—that the underlying issue wasn't a crime is, to the DOJ, beside the point.

This is not to say it's all about headlines. Less ambitious USAs go for lower hanging fruit, like arrowhead collectors:

Eddie Leroy Anderson of Craigmont, Idaho, is a retired logger, a former science teacher and now a federal criminal thanks to his arrowhead-collecting hobby.

In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities "notified me to get a lawyer and a damn good one," Mr. Anderson recalls.

There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn't require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit. Faced with that reality, the two men, who didn't find arrowheads that day, pleaded guilty to a misdemeanor and got a year's probation and a $1,500 penalty each. "We kind of wonder why it got took to the level that it did," says Mr. Anderson, 68 years old.

Wendy Olson, the U.S. Attorney for Idaho, said the men were on an archeological site that was 13,000 years old. "Folks do need to pay attention to where they are," she said.

The U.S. Attorneys offices prosecute whomever they want, for whatever they want, and there is no shortage of laws—and potential laws—with which they can do it. Mr. Swartz may have done wrong by JSTOR, and perhaps he even deserved to pay a fine for his misdeeds, but a two year federal investigation and the threat of putting a young man in prison for the rest of his life was a despicable and wasteful effort by the federal government. Unchecked and vindictive prosecutions ruin lives, and those who are responsible for them should not be rewarded with political office.

We need federal attorneys, and we need them to have a certain latitude in what cases they do, and do not, pursue. But the Department of Justice should rein in its prosecutors and police their activities more closely. Directives from Washington should discourage unjust prosecutions, promote prudence, and tolerate—if not encourage—discretion. And, unlike the current system, these directives should have teeth. Disregarded memos are not emblematic of functioning government. Nor should win totals and headlines be the measure of a United States Attorney.

bellum medicamenti delenda est

PS: Those interested in learning more about rampant overcriminalization should look here and here. I also highly recommend Harvey Silverglate's book "Three Felonies A Day: How the Feds Target the Innocent."